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[ { "docid": "2298142", "title": "", "text": "501 states: Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reasoi) and experience. One of the privileges recognized in Rule 501 is the attorney-client privilege. It is, according to Professor Wigmore, the oldest of the common law privileges dating back to the early 16th century, 8 John H. Wig-more, On Evidence § 2290 (McNaughton rev. ed. 1961), and has encouraged clients to confide in their attorneys fully and frankly, free from the apprehension of disclosure, for nearly 500 years. The privilege began as an exception to the testimonial compulsion for every witness’ evidence. Generally, all relevant proof is essential if determinations by the fact finder are to be made on a complete trial record. Absent full disclosure of all the relevant facts, confidence in the fair administration of justice would cease to exist. See United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974). Because the attorney-client privilege remains an exception that may withhold relevant information at the pre-trial or the trial stage of a criminal prosecution or civil proceeding, it may be invoked to hold secret only those communications made in confidence to a lawyer to obtain legal counsel that would not have been made without the existence of the privilege. See Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976); United States v. Kovel, 296 F.2d 918, 922 (2d Cir.1961) (Friendly, J.). We recognize that the availability of advice from an attorney is essential if corporations are to comply with the ever-increasing complexities of federal law; and, if that advice is to be sought and given there must be predictable certainty as to which communications will be protected. See In re Grand Jury Subpoena Duces Tecum" } ]

[ { "docid": "15413374", "title": "", "text": "2291 at 554, (MacNaughton rev. ed. 1961). The essential elements of the privilege have been outlined by Wigmore: “(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. 8 J. Wigmore, Evidence § 2292 .(MacNaughton rev. 1961).” Id. at 904. The burden of establishing these elements falls squarely upon the party asserting the privilege. Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); Interlego A. G. v. F. A. O. Schwartz, Inc., 196 USPQ 8, 11 n. 5 (N.D.Ga.1977); See United States v. Tratner, 511 F.2d 248 (7th Cir. 1975). The mere existence of the attorney-client relationship does not raise a presumption of confidentiality. Tratner, supra; Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146 (So.Ca.D.C.1975). Therefore, the plaintiff and the defendant must demonstrate why the privilege should attach. In particular, this necessitates a showing of what parties were involved and the legal nature of the advice sought or rendered. See Fisher v. United States, supra; Burlington Industries v. Exxon Corp., 65 F.R.D. 26 (1974). Demonstrating why the privilege should be applicable to the corporate client is more complex. The attorney-client privilege has been recognized in the corporate setting since the 1960’s. The problems inherent in the corporate use of privilege are summed up by the court in the Upjohn case, supra: “The application of the privilege to corporate ‘client’ poses a somewhat different problem. Since corporations .are inanimate, artificial entities, the attorney-client relationship is conceptually more difficult, and its underlying principles are less obvious. As clients, corporations can communicate to attorneys only through agents. Moreover, corporations, unlike individuals, are organized in such a way that responsibilities, and the information needed to fulfill the responsibilities, are delegated and compartmentalized.” Because the attorney-client privilege is not easily confined with respect to corporations, the circuits are split as to" }, { "docid": "14638628", "title": "", "text": "attorney-elient-privilege is ... a confidence reposed____”). When determining if there is in fact an attorney-client privilege present to cloak both the client’s communication and the corresponding legal advice, a court needs to ascertain that this safety net attaches to only those communications (1) where legal advice of any kind is sought, (2) from a professional legal advisor in his or her capacity as such, (3) the communication relates to that purpose, (4) made in confidence, (5) by the client, and (6) are at his or her insistence permanently protected, (7) from disclosure by the client or the legal advisor, (8) except if the protection is waived. United States v. Int’l Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir.1997) (citing In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1036 (2d Cir.1984)); Madanes v. Madanes, 199 F.R.D. 135, 143 (S.D.N.Y.2001) (citing, inter alia, In re Richard Roe, Inc., 68 F.3d 38, 39-40 (2d Cir.1995) & quoting United States v. Kovel, 296 F.2d 918, 921 (2d Cir.1961)); see also 8 Wigmore, Evidence § 2292. This privilege, as previously stated, further attaches to the advice rendered by the attorney. In re Six Grand Jury Witnesses, 979 F.2d 939, 943-44 (2d Cir.1992). The burden of proving each element of the privilege rests on the party claiming the protection. In re Horowitz, 482 F.2d at 82. Contrary to modern yet ill-informed perceptions, the attorney-client privilege is often “[n]arrowly defined, riddled with exceptions, and subject to continuing criticism.” United States v. Schwimmer, 892 F.2d at 243. Grand as the privilege stands in our legal lexicon, it is nonetheless narrowly defined by both scholars and the courts. Univ. of Pa. v. E.E.O.C., 493 U.S. 182, 189, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990). The attorney-client privilege is not given broad, unfettered latitude to every communication with a lawyer, but is to be narrowly construed to meet this narrowest of missions. Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) (“However, since the privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to" }, { "docid": "11663168", "title": "", "text": "the witness’ attorney, indicated thdt he was present at all of the conferences and that he specifically excluded anyone who in his opinion violated the confidentiality of the communications. Mulhall also stated that these conferences were of assistance to him in representing the witness and that, in his opinion, they would be beneficial to the other attorneys and their clients. The government now seeks to query the witness regarding: 1) the identity of the persons to whom he made the disclosures; 2) the number of meetings at which disclosures were made; 3) the purpose of the meetings; 4) ' the extent of any disclosures; and 5) in general, any communication made seeking information from Langswager. Attorney-Client Privilege The essential elements of the attorney-client privilege are set forth as follows: (1) Where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived. [8 Wigmore, Evidence § 2292 (MeNaughton rev. 1961)] The burden of establishing the foregoing rests on the claimant seeking to assert the privilege and its scope should be “strictly confined within the narrowest possible limits.” 8 Wigmore, Evidence § 2291 (McNaughton rev. 1961); United States v. Goldfarb, 328 F.2d 280 (6th Cir.) cert. denied, 377 U.S. 976, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964); United States v. Schmidt, 360 F.Supp. 339 (M.D.Pa.1973); see Radiant Burners, Inc. v. American Gas Association, 320 F.2d 314 (7th Cir. 1963). The court is of the opinion that the witness has failed to establish the third and fourth elements. The fourth prerequisite cited by Wig-more is that the privilege protects only those documents and oral statements communicated to the attorney in professional confidence. This circuit, in United States v. Brown, 478 F.2d 1038, 1040 (7th Cir. 1973), has deemed confidentiality to be the essence of the privilege: “(w)hat is vital to the privilege is that the communication be" }, { "docid": "9829487", "title": "", "text": "re Horowitz, 482 F.2d 72, 80 n. 7 (2d Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973). Quintel does not dispute that the privilege attaches to the communications sought to be shielded here. See Upjohn Co. v. United States, 449 U.S. 383, 389-97, 101 S.Ct. 677, 682-86, 66 L.Ed.2d 584 (1981) (privilege protects communications where client is corporation). See also In re John Doe Corp., 675 F.2d 482, 487-88 (2d Cir.1982). The purpose of the attorney-client privilege is to encourage clients to make full disclosure to their attorneys. See Upjohn v. United States, supra, 449 U.S. at 389, 101 S.Ct. at 682; Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976). As our Court of Appeals has remarked, the privilege is viewed as “essential” to the protection of the client’s legal rights. In re Horowitz, supra, 482 F.2d at 81. “However, since the privilege has the effect of withholding relevant information from the fact-finder, it applies only where necessary to achieve its purpose.” Fisher v. United States, supra, 425 U.S. at 403, 96 S.Ct. at 1577. See In re Horowitz, supra, 482 F.2d at 81 (privilege ought to be strictly confined within narrowest possible limits consistent with logic of its principle) (quoting 8 Wigmore, supra, § 2291 at 554). Gajria’s efforts to pierce Citibank’s assertion of the attorney-client privilege are spearheaded by his contention that Citibank acted as his fiduciary in connection with the acquisition and as such is prohibited from invoking the privilege against him. The primary support for this position is the line of cases that has developed from the doctrine enunciated in Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir.1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1191, 28 L.Ed.2d 323 (1971). In Garner, the Fifth Circuit held that a corporation’s right to assert the attorney-client privilege against its shareholders “where the corporation is in suit against its stockholders on charges of acting inimically to stockholder interests” is “subject to the right of the stockholders to show cause why it should not be invoked in" }, { "docid": "14638629", "title": "", "text": "privilege, as previously stated, further attaches to the advice rendered by the attorney. In re Six Grand Jury Witnesses, 979 F.2d 939, 943-44 (2d Cir.1992). The burden of proving each element of the privilege rests on the party claiming the protection. In re Horowitz, 482 F.2d at 82. Contrary to modern yet ill-informed perceptions, the attorney-client privilege is often “[n]arrowly defined, riddled with exceptions, and subject to continuing criticism.” United States v. Schwimmer, 892 F.2d at 243. Grand as the privilege stands in our legal lexicon, it is nonetheless narrowly defined by both scholars and the courts. Univ. of Pa. v. E.E.O.C., 493 U.S. 182, 189, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990). The attorney-client privilege is not given broad, unfettered latitude to every communication with a lawyer, but is to be narrowly construed to meet this narrowest of missions. Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) (“However, since the privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose.”); see also In re Horowitz, 482 F.2d at 81 (privilege ought to be “strictly confined within the narrowest possible limits consistent with the logic of its principle”) (quoting 8 Wigmore § 2292 at 70); United States v. Int’l Bhd. of Teamsters, 119 F.3d at 214. The case law generally assumes the existence of a governmental attorney-client privilege in civil suits between government agencies and private litigants. In re Grand Jury Investigation, 399 F.3d 527, 532-33 (2d Cir.2005) (citing, inter alia, In re Lindsey, 158 F.3d 1263, 1268 (D.C.Cir.1998) (“Courts, commentators, and government lawyers have long recognized a government attorney-client privilege in several contexts.”)). That is, the legal maxim is substantial in presuming that the “rationale supporting the attorney-client privilege applicability] to private entities has general relevance to governmental entities as well.” Id. at 533 (ultimately finding that this rule has the same force in effect in criminal law as it does in civil cases). S. Work Product Doctrine Whenever the attorney-client privilege is raised in on-going litigation, concomitantly the work product doctrine" }, { "docid": "14638626", "title": "", "text": "2. Attorney-Client Privilege The attorney-client privilege is a longstanding, common law privilege recognized in New York and by the federal courts under Fed.R.Evid. 501. It is one of those “bedrock principle^] of our justice system [which has been sustained] for hundred[s] of years,” dating back to the 1600s. See Am. Law Inst.— ABA — Attorney—client PRiviLEGE(May 15, 2005) at p. 87; United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.1991) (citing 8 J. Wigmore, Evidence, at § 2290, at pp. 542-44 (McNaughton rev.1961) (the privilege being the oldest known — “[the] most ancient of confidential communication privileges”)). This rule has been immortalized as a legal doctrine for eons to encourage full engagement between a party and her attorney so that full and frank communication exists to impart all the information an attorney may need in order to give sage and cogent advice on the matter. Swidler Berlin v. United States, 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998); United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir.1989) (“[The] communications between attorney and client endures as the oldest rule of privilege known to the common law.”). Stated another way, its essential purpose is to encourage clients to be fully forthcoming with their attorney and to receive, in return, advice which will protect the client’s legal rights. Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981); Asian Vegetable Research & Dev. Ctr. v. Inst. of Int’l Educ., 1996 WL 14448, at *4 (S.D.N.Y. Jan.16, 1996) (citing, inter alia, In re Horowitz, 482 F.2d 72, 81 (2d Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973)). The free-flow of information and the twin tributary of advice are the hallmarks of the privilege. For all of this to occur, there must be a zone of safety for each to participate without apprehension that such sensitive information and advice would be shared with others without their consent. In re Grand Jury Subpoena Duces Tecum Dated November 16, 1974, 406 F.Supp. 381, 386 (S.D.N.Y.1975) (“The sine qua non of the" }, { "docid": "20422387", "title": "", "text": "upon the party asserting the privilege. Id. (citing United States v. Schwimmer, 892 F.2d 237, 244 (2d Cir.1989)); see also In re Keeper of the Records (XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003) (“the party who invokes the privilege bears the burden of establishing that ... it has not been waived”). See Int’l. Bhd. of Teamsters, 119 F.3d at 214 (stating party asserting attorney-client privilege bears burden of establishing each element of the privilege, including that the “protection” has not been waived). Although the privilege achieves the beneficial purpose of facilitating communications between attorneys and clients, Int’l. Bhd. of Teamsters, 119 F.3d at 214 (citing Commodity Futures Trading Comm. v. Weintraub, 471 U.S. 343, 348, 105 S.Ct. 1986, 85 L.Ed.2d 372 (1985)), as the privilege limits the admissibility of relevant evidence in judicial and other proceedings, it is strictly construed. Id. (citing In re Horowitz, 482 F.2d 72, 81 (2d Cir.) (citing 8 Wigmore, Evidence §§ 2192 at 70, 554 (1961)), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973)). Because the privilege encourages a client to provide needed information to the attorney to facilitate providing effective legal advice and services, Upjohn Company v. United States, 449 U.S. 383, 390, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981), communications between client and attorney intended for publication or communication to third-parties, are not intended to be confidential when made in order to obtain legal assistance and therefore are not within the privilege. In re von Bulow, 828 F.2d 94, 102 (2d Cir.1987) (“conversations not intended to be confidential, but ... meant to be passed on to third parties” not privileged (citing United States v. Tellier, 255 F.2d 441, 447 (2d Cir.) (“It is ... essence of the attorney-client privilege that it is limited to those communications which are intended to be confidential”), cert. denied, 358 U.S. 821, 79 S.Ct. 33, 3 L.Ed.2d 62 (1958))); Diversified Group, Inc. v. Daugerdas, 304 F.Supp.2d 507, 512 (S.D.N.Y. 2003) (the attorney-client privilege exists to protect both attorney’s giving of professional advice to client, as well as client’s communications to attorney to" }, { "docid": "9767601", "title": "", "text": "documents for which they had originally claimed the privilege. The remaining and sole issue to determine with respect to plaintiffs motion to compel is whether the 76 documents for which defendants have asserted an attorney-client privilege should be produced. Plaintiff’s Claim of Privilege In its privilege log of January 13, 1994 listing 264 documents, plaintiff asserted an “executive/deliberative process privilege” for 90 documents. This privilege is invoked by Philip E. Wilson, Vice President, Facilities (acting), United States Postal Service, in his declaration dated January 7,1994 and updated on February 9, 1994. Because the plaintiff had also asserted attorney-client privilege and/or work product doctrine as to 28 of the 90 documents, grounds that defendants do not challenge, the defendants’ motion to compel concerns only the remaining 62 documents. Pursuant to my request, plaintiff also submitted those 62 documents for in camera inspection. DISCUSSION Defendants’ claim of Attorney-client privilege The attorney-client privilege protects “confidential disclosures by a client to an attorney made in order to obtain legal assistance.” Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976). The privilege attaches: (1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advis- or, (8) except the protection be waived. In Re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1036 (2d Cir.1984). The burden of proving each element of the privilege rests on the party claiming protection. In re Horowitz, 482 F.2d 72, 82 (2d Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973); Stryker Corp. v. Intermedics Or thopedics, Inc., 145 F.R.D. 298, 301 (E.D.N.Y.1992). In this case, the privilege arises in the context of communications between a corporate client and in-house counsel. In general, the privilege extends to confidential communications between corporate employees concerning matters in the scope of their corporate duties as counsel. Upjohn Co. v. United States," }, { "docid": "23608187", "title": "", "text": "F.2d 1347 (9th Cir. 1977); Fed.R.Evid. 501. Thus, it is to the federal common law we must turn for guidance in this case. We begin with the formulation of the essential elements of the privilege found in 8 Wigmore Evidence § 2292 at 554. (McNaughton rev. 1961). (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived. Other circuits have relied on this formulation. E. g., United States v. Goldfarb, 328 F.2d 280 (6th Cir.), cert. denied, 377 U.S. 976, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964); Radiant Burners, Inc. v. American Gas Assn., 320 F.2d 314 (7th Cir.), cert. denied, 375 U.S. 929, 84 S.Ct. 330, 11 L.Ed.2d 262 (1963); Bouschor v. United States, 316 F.2d 451 (8th Cir. 1963). It is important to note that the privilege as defined in Wigmore is limited to “communications . . . made in confidence by the client.” See United States v. United Shoe Machinery Co., 89 F.Supp. 357 (D.Mass.1950). The privilege is so limited for a reason. The rationale for the rule is to encourage clients to confide fully in their attorneys without fear of future disclosure of such confidences. This in turn will enable attorneys to render more complete and competent legal advise. Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); United States v. Goldfarb, supra; see 8 Wigmore, supra, §§ 2290-91. The purpose of the privilege is to protect and foster the client’s freedom of expression. It is not to permit an attorney to conduct his client's business affairs in secret. 8 Wigmore, supra, § 2317; see generally Fisher v. United States, supra. Of necessity the privilege is not limited to the actual communication by the client to the attorney. Ordinarily the compelled disclosure of an attorney’s communications or advice to the client will effectively" }, { "docid": "4388831", "title": "", "text": "between Attorney Manning and Intervenor Gifford; correspondence with another co-executor of the estate; third party letters; a retained copy of a portion of the Form 706 filed for the estate; and Attorney Manning’s worksheets. The production of these documents by Attorney Manning would not violate Gifford’s right against self-incrimination for Gifford presumably would not be compelled to do anything. Fisher v. United States, supra, 425 U.S. at 403, 96 S.Ct. at 1577; In re Katz, supra; United States v. Beattie, 522 F.2d 267 (2d Cir. 1975), remanded, 425 U.S. 967, 96 S.Ct. 2163, 48 L.Ed.2d 791 (1976), modified, 541 F.2d 329. See United States v. Coratti, 47 A.F.T.R. 892 (N.D.N.Y.1981), appeal dismissed, No. 81-6047 (2d Cir. May 26, 1981); United States v. Sneeky Theef Records, Inc., Misc. 504 (N.D.N.Y. Sept. 3, 1981). ATTORNEY-CLIENT PRIVILEGE Intervenor Gifford and Attorney Manning assert in a broad manner that all of the questions unanswered and the documents withheld by Attorney Manning are privileged from production by the attorney-client privilege. At the outset, it must be noted that “the burden of establishing the existence of the attorney-client relationship and its applicability to the particular circumstances presented is upon the party claiming the privilege.” In re Katz, supra at 125; United States v. Demauro, 581 F.2d 50, 55 (2d Cir. 1978); United States v. Stern, 511 F.2d 1364, 1367 (2d Cir.), cert. denied, 423 U.S. 829, 96 S.Ct. 47, 46 L.Ed.2d 46 (1975); In re Horowitz, 482 F.2d 72, 82 (2d Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973). The attorney-client privilege as set forth by Wigmore is: (1) where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such (3) the communications relating to that purpose (4) made in confidence (5) by the client (6) are at his insistence permanently protected (7) from disclosure by himself or the legal adviser (8) except the protection be waived. 8 Wigmore, Evidence § 2292 (McNaughton rev. 1961), at 554, cited with approval in In re Horowitz, supra, at 80 n. 7. It is clear that" }, { "docid": "643801", "title": "", "text": "Accordingly, the motion to dismiss the indictment for failure to allege conduct on which a mail fraud prosecution may be maintained is denied. Attorney/CIient Privilege Defendants argue finally that the interviews of Alpert and Zoffer breached the attorney/client and attorney work-produet privileges and that, because the indictment is the fruit of those breaches, it must be dismissed. In the alternative, they ask this Court to hold an evidentiary hearing on the scope of the breaches and determine the appropriate remedy. The attorney/client privilege rests on the assumption that encouraging clients to be frank with their attorneys assists in the preparation of a defense and aids the truth-seeking process. Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976). Because the privilege “has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose.” Fisher, 425 U.S. at 403, 96 S.Ct. at 1577. The party seeking to invoke the privilege has the burden of establishing its elements, von Bulow v. von Bulow, 811 F.2d 136, 146 (2d Cir.), cert. denied, 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d 498 (1987). The privilege attaches (1) Where legal advice of any kind is sought, (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) are at his instance permanently protected, (7) from disclosure by himself or the legal adviser, (8) except the protection be waived. United States v. Kovel, 296 F.2d 918, 921 (2d Cir.1961). Because privilege is fact-based, defendants must make this showing as to each communication with respect to which they assert the privilege. Allendale Mutual Insurance v. Bull Data Systems, Inc., 145 F.R.D. 84, 86 (N.D.Ill.1992). The attorney/client privilege may extend to confidential communications with an in-house counsel at a corporation. Upjohn v. United States, 449 U.S. 383, 394, 101 S.Ct. 677, 684-85, 66 L.Ed.2d 584 (1981). The party claiming the privilege must show that it sought legal, not business, advice. See, e.g., U.S. Postal Service v. Phelps Dodge Refining" }, { "docid": "23187484", "title": "", "text": "his conversations to Carey. II. This Court reviews rulings on claims of attorney-client privilege for abuse of discretion. See United States v. Adlman, 68 F.3d 1495, 1499 (2d Cir.1995). The issue of the standard that governs an employee’s claim of attorney-client privilege with respect to communications to corporate counsel on corporate matters, however, is one of law, which we therefore review de novo. Cf. In re Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120, 124 (3d Cir.1986) (“Although the applicability of a privilege is a factual question, determining the scope of a privilege is a question of law, subject to plenary review.”). A. The broad outlines of the attorney-client privilege are clear: “(1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.” In re Grand Jury Subpoena Duces Tecum Dated September 15, 1983, 731 F.2d 1032, 1036 (2d Cir.1984) (internal quotation marks omitted). The burden of establishing the existence of an attorney-client privilege, in all of its elements, rests with the party asserting it. See United States v. Schwimmer, 892 F.2d 237, 244 (2d Cir.1989). The attorney-client privilege “serves the function of promoting full and frank communications between attorneys and their clients. It thereby encourages observance of the law and aids in the administration of justice.” Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348, 105 S.Ct. 1986, 1990, 85 L.Ed.2d 372 (1985). However, since the attorney-client privilege “stands in derogation of the public’s ‘right to every man’s evidence, ... it ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle.’ ” In re Horowitz, 482 F.2d 72, 81 (2d Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973) (quoting 8 Wigmore, Evidence §§ 2192, 2291 at 70, 554 (1961)); see also University of Pennsylvania v. EEOC, 493" }, { "docid": "14638627", "title": "", "text": "attorney and client endures as the oldest rule of privilege known to the common law.”). Stated another way, its essential purpose is to encourage clients to be fully forthcoming with their attorney and to receive, in return, advice which will protect the client’s legal rights. Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981); Asian Vegetable Research & Dev. Ctr. v. Inst. of Int’l Educ., 1996 WL 14448, at *4 (S.D.N.Y. Jan.16, 1996) (citing, inter alia, In re Horowitz, 482 F.2d 72, 81 (2d Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973)). The free-flow of information and the twin tributary of advice are the hallmarks of the privilege. For all of this to occur, there must be a zone of safety for each to participate without apprehension that such sensitive information and advice would be shared with others without their consent. In re Grand Jury Subpoena Duces Tecum Dated November 16, 1974, 406 F.Supp. 381, 386 (S.D.N.Y.1975) (“The sine qua non of the attorney-elient-privilege is ... a confidence reposed____”). When determining if there is in fact an attorney-client privilege present to cloak both the client’s communication and the corresponding legal advice, a court needs to ascertain that this safety net attaches to only those communications (1) where legal advice of any kind is sought, (2) from a professional legal advisor in his or her capacity as such, (3) the communication relates to that purpose, (4) made in confidence, (5) by the client, and (6) are at his or her insistence permanently protected, (7) from disclosure by the client or the legal advisor, (8) except if the protection is waived. United States v. Int’l Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir.1997) (citing In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1036 (2d Cir.1984)); Madanes v. Madanes, 199 F.R.D. 135, 143 (S.D.N.Y.2001) (citing, inter alia, In re Richard Roe, Inc., 68 F.3d 38, 39-40 (2d Cir.1995) & quoting United States v. Kovel, 296 F.2d 918, 921 (2d Cir.1961)); see also 8 Wigmore, Evidence § 2292. This" }, { "docid": "4109573", "title": "", "text": "who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.1975). Questions of evidentiary privilege arising in the course of the adjudication of federal rights, such as here, are governed by the principles of federal common law. United States v. Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619, 2625, 105 L.Ed.2d 469 (1989); Fed.R.Evid. 501. Under the attorney-client privilege, “[e]onfidential disclosures by a client to an attorney made in order to obtain legal assistance are privileged.” Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976); Clarke v. American Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir.1992). The attorney-client privilege may be divided into eight essential elements: ‘“(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived.’ ” In re Grand Jury Investigation, 974 F.2d 1068, 1071 n. 2 (9th Cir.1992); United States v. Martin, 278 F.3d 988, 999 (9th Cir.2002). A corporation may claim the attorney-client privilege. Commodity Futures Trading Comm’n. v. Weintraub, 471 U.S. 343, 348, 105 S.Ct. 1986, 1990, 85 L.Ed.2d 372 (1985); Upjohn Co. v. United States, 449 U.S. 383, 390, 101 S.Ct. 677, 683, 66 L.Ed.2d 584 (1981). Because the attorney-client privilege is in derogation of the search for truth, it is “narrowly and strictly construed.” United States v. Gray, 876 F.2d 1411, 1415 (9th Cir.1989), cert. denied, 495 U.S. 930, 110 S.Ct. 2168, 109 L.Ed.2d 497 (1990); see also Fisher, 425 U.S. at 403, 96 S.Ct. at 1569 (holding since attorney-client privilege “has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose”). “The burden is on the party asserting the privilege to establish all the elements of" }, { "docid": "4388832", "title": "", "text": "of establishing the existence of the attorney-client relationship and its applicability to the particular circumstances presented is upon the party claiming the privilege.” In re Katz, supra at 125; United States v. Demauro, 581 F.2d 50, 55 (2d Cir. 1978); United States v. Stern, 511 F.2d 1364, 1367 (2d Cir.), cert. denied, 423 U.S. 829, 96 S.Ct. 47, 46 L.Ed.2d 46 (1975); In re Horowitz, 482 F.2d 72, 82 (2d Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973). The attorney-client privilege as set forth by Wigmore is: (1) where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such (3) the communications relating to that purpose (4) made in confidence (5) by the client (6) are at his insistence permanently protected (7) from disclosure by himself or the legal adviser (8) except the protection be waived. 8 Wigmore, Evidence § 2292 (McNaughton rev. 1961), at 554, cited with approval in In re Horowitz, supra, at 80 n. 7. It is clear that the worthy purpose of the privilege encourages clients to make full disclosures to their attorney. Since the privilege results in withholding relevant information from the factfinder, it is applied only where necessary to achieve its purpose. In re Horowitz, supra at 81-82. And it is to be confined to the narrowest possible limits consistent with its purpose. In re Katz, supra, at 125. The Second Circuit has analyzed in depth the applicability of the attorney-client privilege in IRS summons enforcement proceedings in Colton v. United States, supra, 306 F.2d 633 (2d Cir.). Citing 8 Wigmore, Evidence § 2311 (McNaughton rev. 1961), the Second Circuit noted: Not all communications between an attorney and his client are privileged. Particularly in the case of an attorney preparing a tax return ... a good deal of information transmitted to an attorney by a client is not intended to be confidential, but rather is given for transmittal by the attorney to others — for example, for inclusion in the tax return. Such information is, of course, not privileged. Colton v." }, { "docid": "9829486", "title": "", "text": "for Citibank also objected to certain questions on the ground that they called for information pertaining to the activities of another Citibank employee, Frederick Russo (“Russo”). Russo is also an attorney in Citibank’s Real Estate Investment and Management Department. Citibank claims that the questions put to Kalos concerning Russo are improper because Russo has already been deposed and because Kalos was not present when Russo conducted the activities in question. The Kalos deposition was suspended and this motion resulted. Discussion This Circuit has adopted Wigmore’s formulation of the elements of the attorney-client privilege: (1) where legal advice of any kind is sought, (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. 8 Wigmore, Evidence § 2292 at 554 (McNaughton rev. 1961). See United States v. Demauro, 581 F.2d 50, 55 n. 4 (2d Cir.1978); In re Horowitz, 482 F.2d 72, 80 n. 7 (2d Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973). Quintel does not dispute that the privilege attaches to the communications sought to be shielded here. See Upjohn Co. v. United States, 449 U.S. 383, 389-97, 101 S.Ct. 677, 682-86, 66 L.Ed.2d 584 (1981) (privilege protects communications where client is corporation). See also In re John Doe Corp., 675 F.2d 482, 487-88 (2d Cir.1982). The purpose of the attorney-client privilege is to encourage clients to make full disclosure to their attorneys. See Upjohn v. United States, supra, 449 U.S. at 389, 101 S.Ct. at 682; Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976). As our Court of Appeals has remarked, the privilege is viewed as “essential” to the protection of the client’s legal rights. In re Horowitz, supra, 482 F.2d at 81. “However, since the privilege has the effect of withholding relevant information from the fact-finder, it applies only where necessary to achieve its purpose.”" }, { "docid": "4583459", "title": "", "text": "Trade, 143 F.R.D. at 520-23 (finding that claimant’s “showing adequately establishes that the communications were covered by the attorney-client privilege in American terms” so that the court need not even resort to foreign law), application of foreign privilege law in this case would require disclosure of many documents (1) that are protected from disclosure under American law and (2) that would not be discoverable under Korean law. Therefore, the court will apply its own privilege law to the Korean documents, even though the communications do not “touch base” with the United States. C. APPLYING AMERICAN LAW 1. ATTORNEY-CLIENT PRIVILEGE The attorney-client privilege is intended to encourage clients to be forthcoming and candid with their attorneys so that the attorney is sufficiently well-informed to provide sound legal advice. See Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The Second Circuit has provided the following definition of the attorney-client privilege: (1) Where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advis- or, (8) except the protection be waived. In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1036 (2d Cir.1984); United States v. Kovel, 296 F.2d 918, 921 (2d Cir.1961). The attorney-client privilege “should be strictly confined within the narrowest possible limits underlying its purpose.” United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 504 (2d Cir.1991) (citations omitted). The party claiming the benefit of the attorney-client privilege has the burden of establishing all essential elements. von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir.), cert, denied, 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d 498 (1987); see, e.g., In re Horowitz, 482 F.2d 72, 82 (2d Cir.), cert, denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973). The claimant’s burden cannot be “discharged by mere conclusory or ipse dixit assertions.” von Bulow," }, { "docid": "19214095", "title": "", "text": "727 F.2d 1352, 1355 (4th Cir.1984) for a good discussion of this point and Valente v. Pepsico, Inc., 68 F.R.D. 361, 367 (D.Del.1975). Further, in view of the “costs” of the attorney-client privilege, courts have established rigorous standards for its application. Two of the most frequently cited formulations of the attorney-client privilege are: “The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.” United States v. United Shoe Machinery Corporation, 89 F.Supp. 357, 358-59 (D.Mass.1950). “(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.” 8 J. Wigmore, Evidence § 2292 at 554 (McNaughton rev. 1961). BUSINESS Y. LEGAL ADVICE It is apparent from these two formulations of the attorney-client privilege that communications between an attorney and another individual which relate to business, rather than legal matters, do not fall within the protection of the privilege. “[T]he communication must be with an attorney for the express purpose of securing legal advice. Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976). United States v. Davis, 636 F.2d 1028, 1043 (5th Cir.1981). Business and personal advice are not covered by" }, { "docid": "11070827", "title": "", "text": "privilege is settled: (1) (When) legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. In re Grand Jury, 603 F.2d 469, 474 (3d Cir.1979) (citing J. Wigmore, Evidence § 2292 at 554 (1961)); see also In re Impounded, 241 F.3d 308, 316 n. 6 (3d Cir.2001). “The burden of proving that the (attorney-client) privilege applies is placed upon the party asserting the privilege.” In re Grand Jury, 603 F.2d at 474 (citing among other cases United States v. Landof, 591 F.2d 36, 38 (9th Cir.1978)). The attorney-client privilege serves laudable purposes and thus is “[w]or-thy of maximum protection.” Haines v. Liggett Group Inc., 975 F.2d 81, 90 (3d Cir. 1992). Nevertheless, the privilege obstructs the truth-finding process and is to be construed narrowly. Westinghouse Elec. Corp., 951 F.2d at 1423. The privilege “protects only those disclosures — necessary to obtain informed legal advice — which might not have been made absent the privilege.” Id. (citing Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)). “In Pennsylvania, the attorney-client privilege is an absolute privilege; it is not a limited privilege that is inapplicable whenever a court determines that the case cannot be fairly decided if the privilege is invoked.” Mueller v. Nationwide Mutual Ins. Co., 31 Pa. D. & C.4th 23, 1996 WL 910155, *31 (Ct. of Com. Pleas of Allegheny County, May 22, 1996) (Wettick, J.). Nevertheless, “[protection under attorney-client privilege is subject to limits, exceptions, and waiver.” Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259, 1265 (Pa.Super.2007). A client can waive the attorney-client privilege in a number of ways. One is by disclosing a protected communication to a third party. Id. (citing Loutzenhiser v. Doddo, 436 Pa. 512, 260 A.2d 745, 748 (1970); Joe v. Prison Health Services, Inc., 782 A.2d 24, 31 (Pa.Commw.Ct.2001)). Such" }, { "docid": "2903906", "title": "", "text": "must demonstrate that “the drafts ‘formed an essential link in a specified consultative process’ or ‘if released, would inaccurately reflect or prematurely disclose the views of the agency.’ ” N.Y. Times Co. v. U.S. Dep’t of Def., 499 F.Supp.2d 501, 515 (S.D.N.Y.2007) (quoting Grand Cent. P’ship, Inc., 166 F.3d at 482). The Court finds that the CIA has provided the Court with sufficient information, in the form of supporting declarations (see Barron Deck, Grafeld Deck, and Hecker Deck) and the descriptions contained in the Vaughn index, to support the CIA’s withholding of documents pursuant to the deliberative process privilege, b. Attorney-Client and Work-Product Privileges 1. Attorney-Client Privilege “The broad outlines of the attorney-client privilege are clear: (1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.” United States v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., AFL-CIO, 119 F.3d 210, 214 (2d Cir.1997) (citation and internal quotation marks omitted). “The purpose of the attorney-client privilege is to promote open communication between attorneys and their clients so that fully informed legal advice may be given.” In re John Doe, Inc., 13 F.3d 633, 635-36 (2d Cir.1994). “[T]he traditional rationale for the privilege applies with special force in the government context,” In re Grand Jury Investig., 399 F.3d 527, 534 (2d Cir.2005), because public officials need “candid legal advice” to “understand and respect constitutional, judicial and statutory limitations,” In re County of Erie, 473 F.3d 413, 419 (2d Cir.2007). The burden is on the agency to demonstrate that confidentiality was expected in the handling of these communications and that it was reasonably careful to keep this confidential information protected from general disclosure. Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 863 (D.C.Cir.1980). “In the governmental context, the ‘client’ may be the agency and the attorney may be" } ]

[ { "docid": "2483221", "title": "", "text": "member of an armed force on active duty whose term of enlistment expires while he is suffering from disease or injury incident to service and not due to his misconduct, and who needs medical care or hospitalization, may be retained on active duty, with his consent, until he recovers to the extent that he is able to meet the physical requirements for reenlistment, or it is determined that recovery to that extent is impossible.” 10 U.S.C. § 507(a). . Special provisions were made for mentally incompetent personnel. . The appellant testified that he received no pay or allowances after February 1973. . As noted previously, the appellant testified that upon entering the hospital he informed the registrar of his anticipated separation. . See United States v. Klunk, 3 U.S.C.M.A. 92, 94, 11 C.M.R. 92, 94 (1953). . An enlisted member of the Armed Forces is required to make up time lost as the result of an unauthorized absence of more than one day, “as determined by competent authority.” Section 972, Title 10, United States Code. For reasons not made clear by the record of trial, the appellant’s enlistment was not extended as the result of an unauthorized absence in February of 1973, even though there was a substantial amount of time in which to comply with the proper procedure. In any event, as the putative absence was only 5 days long, the extension would only have been until 7 April. . See United States v. Brown, 23 U.S.C.M.A. 162, 48 C.M.R. 778 (1974); United States v. Kilbreath, 22 U.S.C.M.A. 390, 47 C.M.R. 327 (1973); United States v. Russo, 23 U.S.C.M.A. 511, 50 C.M.R. 650, 1 M.J. 134 (1975). See also United States v. Walker, 47 C.M.R. 288 (ACMR 1973). As the Court of Military Appeals stated in United States v. Russo, supra (p. 135 of 1 M.J.): “It is well-settled that a government agency must abide by its own rules and regulations where the underlying purpose of such regulations is the protection of personal liberties or interests.”" } ]

[ { "docid": "8305189", "title": "", "text": "alter a serviceman’s status as a person subject to the Uniform Code.” United States v. Dickenson, 6 U.S.C.M.A. 438, 448, 20 C.M.R. 154, 164 (1955), jurisdiction sustained, sub nom. Dickenson v. Davis, 245 F.2d 317 (10th Cir. 1957), cert. denied, 355 U.S. 918, 78 S.Ct. 349, 2 L.Ed.2d 278 (1958). Accord, United States v. Johnson, 6 U.S.C.M.A. 320, 20 C.M.R. 36 (1955). The service-person may, however, demand discharge upon termination of his period of enlistment, but a demand made after the preferral of charges is too late. United States v. Hout, 19 U.S.C.M.A. 299, 41 C.M.R. 299 (1970). See paragraph lid, Manual for Courts-Martial, United States, 1969 (Revised edition). The general principle is that military jurisdiction continues after the end of the term of enlistment if such jurisdiction has previously attached. Winthrop, Military Law and Precedents 90, 91 (2d ed. 1920 Reprint). In the present case, the appellant did not object to his retention beyond his ETS date, and the issue was not raised until after findings of guilty had been announced. Thus, Article 2 and the precedents of this Court sanction the exercise of court-martial jurisdiction. However, the appellant submits that the general rule has been changed by paragraph 2-4, AR 635-200, c. 43, dated April 10, 1974. In material part, during the time in question, that paragraph provided: 2-4. When investigation is initiated with view to trial by court-martial or member is awaiting trial or result of trial, a. A member may be retained beyond the expiration of his term of service by a general court-martial convening authority, or his designee, when an investigation of his conduct has been initiated with a view to trial by court-martial; charges have been preferred; or the member has been apprehended, arrested, confined or otherwise restricted by the appropriate military authority. However, if charges have not been preferred, the member shall not be retained more than 30 days beyond the expiration of his terms of service without the personal approval of the general court-martial convening authority concerned. b. An individual who, on the date on which he would otherwise be eligible for" }, { "docid": "1143482", "title": "", "text": "be dismissed pursuant to the regulation. If he denied the appeal, the Court would authorize a rehearing. . To the extent the differing facts in United States v. Walck, 54 C.M.R. 308, 2 M.J. 551 (A.C.M.R.1976) (accused held almost two months beyond his ETS before convening authority acted to approve retention by referring case to trial, notwithstanding accused’s demands for release), distinguish it from the case at bar, the results are not inconsistent. However, to the extent that Walck holds (a) that failure of the Government to comply with its own regulation divests the court of jurisdiction to try the accused, and (b) that the sole remedy is. dismissal of charges, we expressly overrule that decision. We find no inconsistency between United States v. Kalt, 50 C.M.R. 95 (A.C.M.R.1975), and this case because there we found that jurisdiction had not been preserved under paragraph lid, Manual for Courts-Martial, United States, 1969 (Revised edition). Our decision in United States v. Simpson, 51 C.M.R. 218, 1 M.J. 608 (1975), is arguably but not actually inconsistent with our holding here. There we held the Government estopped, because of its failure to comply with its regulation, from exercising jurisdiction over a soldier who was held beyond his ETS over his objection and tried for an AWOL occurring after ETS when the Government unlawfully refused to release him. Those facts compel a different result. COSTELLO, Judge, concurring in result: This case was properly tried under the traditional rules that military status raises amenability to military criminal law and that military status, once acquired, persists until terminated according to law. I write separately and overlong to emphasize the importance of the traditional rules and to contest certain threatened erosions of the proper scope of those rules. I reject appellant’s contention and the minority view that the Government was guilty of a misdeed equivalent to an individual soldier’s violation of Article 92(1), Uniform Code of Military Justice, such that it is estopped to assert criminal jurisdiction over this appellant. The majority opinion is in agreement with that view to the extent that it says that there was" }, { "docid": "1143469", "title": "", "text": "OPINION OF THE COURT En Banc. JONES, Senior Judge: Charged with housebreaking, willful destruction of military property, and larceny (nine specifications), the appellant was convicted only of housebreaking and one count of attempted larceny in violation of Articles 130 and 80, Uniform Code of Military Justice, 10 U.S.C. §§ 930 and 880. We are reviewing the case pursuant to Article 66, UCMJ. The charges arose out of the entry by appellant and another into a barracks occupied by appellant’s unit which was on temporary duty from Fort Lewis to Alaska. Appellant, a member of the rear detachment of the unit, was supposed to be guarding the building and the property therein. Appellant’s involvement in the break-in and theft was established immediately. He was confined on 18 November 1975, charges were preferred on 28 November 1975, the Article 32 investigation was conducted during the period 9-29 December 1975, charges were referred to trial on 7 January 1976, and the trial held on 16, 23 and 24 January 1976. At trial, appellant raised the question of jurisdiction of the court-martial over his person because he was beyond the expiration of his term of service (ETS) and the convening authority had taken no action to retain him on duty as required by paragraph 2-4a, AR 635-200. On appeal the issue has properly been refined to one of whether the Government was precluded from exercising its jurisdiction over the appellant because it had failed to comply with its own regulation concerning retention beyond ETS, rather than whether the court-martial in fact had jurisdiction over the person. Jurisdiction of the court-martial over the person of this appellant is based on Article 2, UCMJ, 10 U.S.C. § 802, which provides: “Article 2. Persons subject to this chapter. The following persons are subject to [the Uniform Code of Military Justice]: (1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment, . . .” As a member of the active Army awaiting discharge after his term of enlistment had expired, appellant came within the category of persons" }, { "docid": "1143508", "title": "", "text": "of service, by a general court-martial convening authority or his designee when certain conditions exist. We’ve discussed the matter with trial counsel. We believe the trial counsel’s willing to stipulate that the accused’s ETS date has passed; It was subsequent to his ETS date before charges were referred for trial; Charges had been preferred before the ETS date; and that no action was taken by either the general court-martial convening authority or his designee regarding the accused’s retention beyond his ETS date. TC: Government so stipulates, your Honor.” Additionally, I cannot concur with the conclusion that, because the first page of the charge sheet attached to the advice contained the date of the appellant’s enlistment and the length of that enlistment, the convening authority must have known the date of appellant’s ETS. Computation of an ETS by merely adding the period of enlistment to the entry date is notoriously risky, principally because of the operation of 10 U.S.C. § 972. The case sub judice is one in point. See footnote 2, Senior Judge Jones’ opinion. Thus, I find it highly dubious that the convening authority was even vaguely aware of appellant’s ETS when he referred the case to trial — assuming such knowledge at that point in time is relevant to the resolution of the instant case. . I am aware that the decisions in United States v. Hout, 19 U.S.C.M.A. 299, 41 C.M.R. 299 (1970), and in United States v. Downs, 3 U.S.C.M.A. 90, 11 C.M.R. 90 (1953), appear to create a waiver theory in cases in which personnel are held beyond their ETS without compliance with paragraph lid, MCM, 1969 (Rev.), when such personnel fail to object to their retention. However, I refuse to convert a failure of an incarcerated serviceman to demand his separation into a consensual or voluntary acquiescence in his retention, and therefore find that theory inapplicable in this case. . That the Government must comply with its own regulations is beyond cavil at this point. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); United States v. Dunks, supra; United" }, { "docid": "8305191", "title": "", "text": "discharge or release from active duty, is awaiting trial or result of trial by court-martial will not be discharged or released from active duty until final disposition of the court-martial charges. . . . Enlisted personnel under sentence to dishonorable or bad conduct discharge will not be discharged prior to completion of appellate review, unless so directed by Headquarters, Department of the Army. If the individual is absent without leave at the time appellate review is completed, the punitive discharge may be executed notwithstanding his absence. Appellant interprets the regulation to require the convening authority, or his designee, to take some affirmative action to his ETS date to continue court-martial jurisdiction. He argues that the Government failed to comply with its own regulation and that failure precluded the exercise of jurisdiction. Contrarily, the Government submits that the regulation imposes no additional requirements to retain jurisdiction, and if it does, those requirements were met by the convening authority’s referral of the charges to trial. The cited portions of the regulation do not specifically require any particular procedure for the retention of a member. Indeed, the obligation of the convening authority to act in any way only occurs when an accused has been retained for more than 30 days without preferral of the charges; at that time, the convening authority’s approval is required. However, we need not decide when and in what manner the convening authority or his designee must act, for we conclude the regulation has no effect on court-martial jurisdiction. Congress defined court-martial jurisdiction in Article 2(1), UCMJ, to include persons “awaiting discharge after expiration of their terms of enlistment.” A person subject to the Code continues in service until the formalities of a discharge or release from active duty have been met or he objects to his continued retention and a reasonable time expires without appropriate action by the Government. Compare United States v. Griffin, 13 U.S.C.M.A. 213, 32 C.M.R. 213 (1962); Taylor v. Resor, 19 U.S.C.M.A. 405, 42 C.M.R. 7 (1970), with United States v. Brown, 12 U.S.C.M.A. 693, 31 C.M.R. 279 (1962); United States v. Scott, 11" }, { "docid": "12049745", "title": "", "text": "OPINION OF THE COURT FULTON, Senior Judge: On this, the second conviction of the appellant that we have reviewed during his enlistment, the appellant contends that courts-martial are without jurisdiction over him because his enlistment to avoid civilian charges was involuntary and was also void because it was accomplished with the fraudulent assistance of the recruiting sergeant. In addition, he contends that no constructive enlistment arose because he never thereafter voluntarily submitted to military authority. We hold that appellant is subject to court-martial jurisdiction on each of two independent grounds. First his enlistment was neither involuntary nor, in view of the provisions of Article 2(b) of the Uniform Code of Military Justice, 10 U.S.C. § 802(b), as added by a recent amendment, was it made void by the recruiter’s fraud. Second, the appellant’s conduct between his enlistment and the return to duty following his first conviction by a court-martial was such as to bring about a constructive enlistment, which the recruiter’s misconduct does not estop the Government from asserting as a basis for jurisdiction. Procedural Background On 15 November 1976, under circumstances described .later in this opinion, appellant enlisted in the Regular Army for a three-year term of service. In April 1979, a special court-martial at Fort Stewart, Georgia, convicted him of striking a noncommissioned officer. The approved sentence included a short term of confinement and partial forfeiture of pay, and a bad-conduct discharge which the convening authority suspended when he took his action in June 1979. When the term of confinement had been served and the convening authority’s action taken, appellant was permitted to go home on a combination of accrued and excess leave (i. e., leave without pay) to await the completion of appellate review. This court affirmed the conviction. United States v. Boone, SPCM 14054 (ACMR, 21 August 1979) (mem.). The conviction became final when appellant failed to petition the Court of Military Appeals for review. Since his punitive discharge remained suspended, he was ordered to report to Fort Knox, Kentucky, on 17 November 1979, to finish serving his enlistment. He returned to duty on that date," }, { "docid": "1143480", "title": "", "text": "authority would have approved a lesser sentence had he been properly advised. The assigned error alleging appellant’s confession was improperly admitted into evidence has been considered but does not warrant discussion. We are convinced that appellant was properly advised in accordance with Article 31, U.C.M.J., and United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967), and that he voluntarily waived his rights. The findings of guilty and the sentence are affirmed. Senior Judge CARNE, and Judges DONAHUE, FELDER, FULTON, MITCHELL and MOUNTS concur. Chief Judge CLAUSEN and Judge CLAUSE, not participating. . Initially the three charges contained a total of 61 specifications; after the Article 32 investigation the number of specifications was reduced and the larceny charges redrafted and repreferred. . Counsel stipulated that appellant’s ETS was 27 December 1975 but appellant’s service record admitted at trial establishes an ETS of 3 January 1976. However, we will accept the date of 27 December 1975 for purposes of this review. . 2 — 4. When investigation is initiated with view to trial by court-martial or member is awaiting trial or result of trial. a. A member may be retained beyond the expiration of his term of service by a general court-martial convening authority, or his designee, when an investigation of his conduct has been initiated with a view to trial by court-martial; charges have been preferred; or the member has been apprehended, arrested, confined, or otherwise restricted by the appropriate authority. However, if charges have not been preferred, the member shall not be retained more than 30 days beyond the expiration of his terms of service without the personal approval of the general court-martial convening authority concerned. . Note 3, supra. . United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). . The Court of Military Appeals set aside the findings and sentence to permit appellant to take his administrative appeal to the CINCU-SAREUR on the denial of his request for dismissal of charges under the USAREUR 45-day speedy trial rule. If the CINC granted the appeal, the charges would then" }, { "docid": "1143496", "title": "", "text": "the acts for which he was convicted, i. e,, 18 November 1975, and he continued in that status until trial. Charges were preferred on 28 November 1975. The appellant’s ETS was 27 December 1975. The Article 32 investigation was completed on 29 December 1975. The case was referred to a general court-martial on 7 January 1976 and trial commenced on the 16th of that same month. Article 2, UCMJ, reads in applicable part: “The following persons are subject to this chapter: (1) Members of a regular component of the armed forces including those awaiting discharge after expiration of their terms of enlistment; . . . .” While a regular soldier is, by the terms of this article, subject to the Uniform Code while awaiting accomplishment of his discharge, we must look elsewhere for the authority to retain him beyond the expira tion of his term of service (ETS). In this case the Government relies upon paragraph lid, Manual for Courts-Martial, United States, 1969 (Revised edition), for such power. That provision reads as follows: “d. Effect of termination of term of service. Jurisdiction having attached by commencement of action with a view to trial — as by apprehension, arrest, confinement, or filing of charges — continues for all purposes of trial, sentence, and punishment. If action is initiated with a view to trial because of an offense committed by an individual before his official discharge — even though the term of enlistment may have expired — he may be retained in the service for trial to be held after his period of service would otherwise have expired. Similarly, if jurisdiction has attached by the commencement of action before the effective terminal date of self-executing orders, a person may be held for trial by court-martial beyond that terminal date. See also Article 2(1).” (Emphasis supplied and footnote added). Were the problem involved in this case for resolution solely controlled by this paragraph, I think there would be near unanimity of opinion that the Government acted lawfully. The crux of the problem in this case, however, is to be found in Army Regulation" }, { "docid": "8305188", "title": "", "text": "Opinion of the Court COOK, Judge: Appellant was convicted by a special court-martial of several offenses in violation of the Uniform Code of Military Justice. We granted review to determine whether the court-martial lacked, jurisdiction over his person. The facts are not in dispute. On October 23, 1975, the offenses were committed, and, on November 6, the appellant was adminis tratively “flagged” by his company commander. Charges were preferred on November 12. The parties stipulated that the appellant’s adjusted expiration of term of service (ETS) was November 26. On December 4, the convening authority referred the case to trial, and trial was held on December 22 and 23. Article 2, UCMJ, 10 U.S.C. § 802, sets forth the following concerning those subject to court-martial jurisdiction: The following persons are subject to this chapter: (1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; . In construing the quoted provision, the Court previously held that “[m]ere expiration of the regular period of enlistment does not alter a serviceman’s status as a person subject to the Uniform Code.” United States v. Dickenson, 6 U.S.C.M.A. 438, 448, 20 C.M.R. 154, 164 (1955), jurisdiction sustained, sub nom. Dickenson v. Davis, 245 F.2d 317 (10th Cir. 1957), cert. denied, 355 U.S. 918, 78 S.Ct. 349, 2 L.Ed.2d 278 (1958). Accord, United States v. Johnson, 6 U.S.C.M.A. 320, 20 C.M.R. 36 (1955). The service-person may, however, demand discharge upon termination of his period of enlistment, but a demand made after the preferral of charges is too late. United States v. Hout, 19 U.S.C.M.A. 299, 41 C.M.R. 299 (1970). See paragraph lid, Manual for Courts-Martial, United States, 1969 (Revised edition). The general principle is that military jurisdiction continues after the end of the term of enlistment if such jurisdiction has previously attached. Winthrop, Military Law and Precedents 90, 91 (2d ed. 1920 Reprint). In the present case, the appellant did not object to his retention beyond his ETS date, and the issue was not raised until after findings of guilty had been announced. Thus, Article 2" }, { "docid": "1137614", "title": "", "text": "and no charges had been preferred. On 7 October 1975 permission by the designee of the general court-martial convening authority authorized “retention beyond ETS of SM” under the authority of the above-cited regulatory provision. Appellant was returned from his unauthorized absence on 5 March 1976. On 10 March 1976, charges, unrelated to the AWOL, were preferred and on 24 March 1976 additional charges, to include the AWOL, were also preferred. All charges were referred by the general court-martial authority on 22 April 1976. While appellant concedes that his ETS was extended beyond 21 September 1975 by the action of the convening authority’s designee, he sets the termination date of that extension at 21 October 1975 and argues, based on the second sentence of the paragraph quoted, supra, that because the general court-martial convening authority didn’t personally act to retain him beyond the 21 October date the Government is es-topped from bringing him to trial. He cites United States v. Kalt, 50 C.M.R. 95 (A.C.M. R.1975) and United States v. Simpson, 51 C.M.R. 218, 1 M.J. 608 (A.C.M.R.1975) as supportive of his conclusion. We find factual distinctions between those cases and the instant case that persuade us of their inapplicability to this case. The fallacy in appellant’s argument becomes apparent on reading Title 10 United States Code § 972: “An enlisted member of an armed force who— ... (2) is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority; . is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted.” All parties to this litigation agree that when appellant took “French leave” on 3 September 1975 he had, at a minimum, 17 days yet to complete on the original enlistment that had been due to expire on 21 September 1975. Appellant was liable, under the terms of the aforequoted statute, to serve upon his return to military control at least 17 more" }, { "docid": "8305192", "title": "", "text": "procedure for the retention of a member. Indeed, the obligation of the convening authority to act in any way only occurs when an accused has been retained for more than 30 days without preferral of the charges; at that time, the convening authority’s approval is required. However, we need not decide when and in what manner the convening authority or his designee must act, for we conclude the regulation has no effect on court-martial jurisdiction. Congress defined court-martial jurisdiction in Article 2(1), UCMJ, to include persons “awaiting discharge after expiration of their terms of enlistment.” A person subject to the Code continues in service until the formalities of a discharge or release from active duty have been met or he objects to his continued retention and a reasonable time expires without appropriate action by the Government. Compare United States v. Griffin, 13 U.S.C.M.A. 213, 32 C.M.R. 213 (1962); Taylor v. Resor, 19 U.S.C.M.A. 405, 42 C.M.R. 7 (1970), with United States v. Brown, 12 U.S.C.M.A. 693, 31 C.M.R. 279 (1962); United States v. Scott, 11 U.S.C.M.A. 646, 29 C.M.R. 462 (1960). As no action was taken to separate the appellant from the service and appellant did not object to his retention, his military status was not terminated. Two cases cited by appellant, United States v. Russo, 23 U.S.C.M.A. 511, 50 C.M.R. 650, 1 M.J. 134 (1975), and United States v. Burden, 23 U.S.C.M.A. 510, 50 C.M.R. 649, 1 M.J. 89 (1975), are inapposite. In those cases the enlistments were void at their inception as a result of recruiter misconduct and the failure of the enlistees to meet minimum enlistment standards. Thus, the enlistees never attained the status of persons subject to the Code and the conditions precedent to the existence of court-martial jurisdiction were not met. See also United States v. Barrett, 23 U.S.C.M.A. 474, 50 C.M.R. 493, 1 M.J. 74 (1975); United States v. Brown, 23 U.S.C.M.A. 162, 48 C.M.R. 778 (1974); United States v. Catlow, 23 U.S.C.M.A. 142, 48 C.M.R. 758 (1974). As previously indicated, the appellant’s military status was properly effected and that status was not terminated." }, { "docid": "1143507", "title": "", "text": "elapsed from the date appellant was placed in pretrial confinement until his ETS. This was ample time to obtain the requisite approval for retention, but no one did. Almost two weeks passed, after appellant’s ETS before the general court-martial convening authority referred this case to trial. Appellant was in pretrial confinement during this entire period. Assuming, arguendo, that a post-ETS act by the GCM authority or his designee complies with the terms of the regulation if done within a reasonable time, I don’t consider the act by the GCM authority in this case to have been within such a reasonable time. In this connec tion, we note that on page 26-27, record of trial, during the defense counsel’s motion on this issue, the following colloquy: “IC: Let the record reflect that the defense counsel is offering to the judge, Appellate Exhibit IV Your Honor, that is a xerox copy of the paragraph of the Army Regulation in question. Your Honor, that regulation points out that a member may be retained beyond the expiration of term of service, by a general court-martial convening authority or his designee when certain conditions exist. We’ve discussed the matter with trial counsel. We believe the trial counsel’s willing to stipulate that the accused’s ETS date has passed; It was subsequent to his ETS date before charges were referred for trial; Charges had been preferred before the ETS date; and that no action was taken by either the general court-martial convening authority or his designee regarding the accused’s retention beyond his ETS date. TC: Government so stipulates, your Honor.” Additionally, I cannot concur with the conclusion that, because the first page of the charge sheet attached to the advice contained the date of the appellant’s enlistment and the length of that enlistment, the convening authority must have known the date of appellant’s ETS. Computation of an ETS by merely adding the period of enlistment to the entry date is notoriously risky, principally because of the operation of 10 U.S.C. § 972. The case sub judice is one in point. See footnote 2, Senior Judge Jones’ opinion." }, { "docid": "1143473", "title": "", "text": "changes, that provision evolved into its form at the time of this offense. The Army in effect has placed more stringent requirements on its exercise of jurisdiction over servicemen after their term of service has expired than is required by the long-existing law set out above, but that is permissible. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). The more stringent requirements are that retention beyond ETS must be approved by the general court-martial convening authority or his designee, or if no charges are preferred within 30 days, retention must be personally approved by the convening authority. It was stipulated by the parties that neither the convening authority nor any designee took any action regarding the appellant’s retention beyond his ETS date. The appellant points to the line of cases applying the Accardi doctrine to the military in the following language: “A government agency must abide by its own rules and regulations where the underlying purpose of such regulations is the protection of personal liberties and interests.” United States v. Dunks, 24 U.S.C.M.A. 71, 51 C.M.R. 200, 1 M.J. 254 (1976); United States v. Russo, 23 U.S.C.M.A. 511, 50 C.M.R. 650, 1 M.J. 134 (1975); United States v. Walck, 54 C.M.R. 308, 2 M.J. 551 (A.C.M.R.1976). He argues that the Government was bound by its regulation and as it did not follow the regulation, it was precluded from exercising jurisdiction in the court-martial. The Government counters first with the proposition that the command complied with the regulation; and second, assuming the regulation was not followed, the lack of compliance did not require dismissal of the charges. ' No evidence was presented at trial or to this Court on the intentions of the drafters of the regulation in changing paragraph 2-4a into its present form. We are left to our resources in interpreting its meaning. In making that interpretation we believe the regulation should be consistent with the statement of the law contained in paragraph lid of the Manual. The regulation obviously contemplates" }, { "docid": "1143481", "title": "", "text": "or member is awaiting trial or result of trial. a. A member may be retained beyond the expiration of his term of service by a general court-martial convening authority, or his designee, when an investigation of his conduct has been initiated with a view to trial by court-martial; charges have been preferred; or the member has been apprehended, arrested, confined, or otherwise restricted by the appropriate authority. However, if charges have not been preferred, the member shall not be retained more than 30 days beyond the expiration of his terms of service without the personal approval of the general court-martial convening authority concerned. . Note 3, supra. . United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). . The Court of Military Appeals set aside the findings and sentence to permit appellant to take his administrative appeal to the CINCU-SAREUR on the denial of his request for dismissal of charges under the USAREUR 45-day speedy trial rule. If the CINC granted the appeal, the charges would then be dismissed pursuant to the regulation. If he denied the appeal, the Court would authorize a rehearing. . To the extent the differing facts in United States v. Walck, 54 C.M.R. 308, 2 M.J. 551 (A.C.M.R.1976) (accused held almost two months beyond his ETS before convening authority acted to approve retention by referring case to trial, notwithstanding accused’s demands for release), distinguish it from the case at bar, the results are not inconsistent. However, to the extent that Walck holds (a) that failure of the Government to comply with its own regulation divests the court of jurisdiction to try the accused, and (b) that the sole remedy is. dismissal of charges, we expressly overrule that decision. We find no inconsistency between United States v. Kalt, 50 C.M.R. 95 (A.C.M.R.1975), and this case because there we found that jurisdiction had not been preserved under paragraph lid, Manual for Courts-Martial, United States, 1969 (Revised edition). Our decision in United States v. Simpson, 51 C.M.R. 218, 1 M.J. 608 (1975), is arguably but not actually inconsistent with our" }, { "docid": "1143495", "title": "", "text": "for training contracted for by Reservists are not necessarily exceptions to this as they provide for automatic termination. . I am personally persuaded that the soldier fares better at all stages of the proceedings, but civilian courts do not always see it that way. . These cases of recognition in various circumstances are amply collected in the Government’s brief. . The identity of this 30 day period with the period after which GCM authorities must personally review the pretrial confinement of accused persons cannot be overlooked. COOK, Senior Judge, dissenting: I dissent. Appellant was convicted, contrary to his pleas, of one specification of unlawful entry and of one specification of attempted larceny. These crimes are violative of Articles 108 and 80, Uniform Code of Military Justice (10 U.S.C. §§ 908 and 880) respectively. The principal thrust by appellant in his appeal is that the Government, because of its failure to comply with its own regulation, is estopped from asserting jurisdiction over him. I agree. Appellant was confined on the same day as the commission of the acts for which he was convicted, i. e,, 18 November 1975, and he continued in that status until trial. Charges were preferred on 28 November 1975. The appellant’s ETS was 27 December 1975. The Article 32 investigation was completed on 29 December 1975. The case was referred to a general court-martial on 7 January 1976 and trial commenced on the 16th of that same month. Article 2, UCMJ, reads in applicable part: “The following persons are subject to this chapter: (1) Members of a regular component of the armed forces including those awaiting discharge after expiration of their terms of enlistment; . . . .” While a regular soldier is, by the terms of this article, subject to the Uniform Code while awaiting accomplishment of his discharge, we must look elsewhere for the authority to retain him beyond the expira tion of his term of service (ETS). In this case the Government relies upon paragraph lid, Manual for Courts-Martial, United States, 1969 (Revised edition), for such power. That provision reads as follows: “d. Effect" }, { "docid": "1137616", "title": "", "text": "days. Thus, when appellant left military control on 3 September his original ETS of 21 September became inoperative. Appellant’s adjusted ETS upon the occasion of his return to military control on 5 March 1976 was, applying the language of the statute to the facts of this case, at least 22 March 1976. As charges had been preferred by the latter date, under the broad terms of the retention authorization, referred to earlier, this date was extended indefinitely. In short, there was never any need in this case for the general court-martial convening authority to take a personal action under the provisions of paragraph 2-Aa, AR 635-200. Consequently, we find the alleged jurisdictional error to be without merit. Detecting no other prejudicial errors and being satisfied that the sentence is appro priate — the findings of guilty and the sentence are affirmed. Judge DRIBBEN and Judge DeFORD concur. . See United States v. Torres, 3 M.J. 659 (A.C.M.R. en banc 1977). . Quote is from actual phrase taken from authorizing indorsement (R, App Ex VII); “SM” means service member, AR 310-50, 3 November 1975, Authorized Abbreviations and Brevity Codes. . A euphemism for an unauthorized departure. See Webster’s New World Dictionary of the American Language (2d College Ed., 1974). Apparently at one time the French were the butt of ethnic jokes, not unlike the present day situation as pertains to certain Slavic and Mediterranean countries. For example, venereal disease was once known as “French gout.” See E. C. Brewer, Dictionary of Phrase & Fable, 438 (Centenary Ed. 1970). . Appellant asserts that 10 U.S.C. § 972 is not self-executing. We see nothing in the language of the statute or its implementing regulation (see paragraph 2-3, AR 635-200) to support that assertion. Clearly his unit commander had made all the determination as to his status that is required by the statute when he reported that appellant was in an AWOL status. . There is also no question that, on the date the authorization was issued, “an investigation of [appellant’s] conduct ha[d] been initiated with a view to trial by court-martial.” See paragraph" }, { "docid": "1137613", "title": "", "text": "OPINION OF THE COURT COOK, Senior Judge: The appellant alleges here, as he did at the trial level, that the military was es-topped from trying him for his crimes because it had failed to comply with the provisions of paragraph 2 — 4a, AR 635-200. The referenced paragraph reads: “A member may be retained beyond the expiration of his term of service by a general court-martial convening authority, or his designee, when an investigation of his conduct has been initiated with a view to trial by court-martial; charges have been preferred; or the member has been apprehended, arrested, confined or otherwise restricted by the appropriate military authority. However, if charges have not been preferred, the member shall not be retained more than 30 days beyond the expiration of his terms of service without the personal approval of the general court-martial convening authority concerned.” The relevant facts and appellant’s argument are as follows: On 3 September 1975, appellant went absent without leave (AWOL). On 21 September 1975 his original ETS (expiration term of service) date arrived, and no charges had been preferred. On 7 October 1975 permission by the designee of the general court-martial convening authority authorized “retention beyond ETS of SM” under the authority of the above-cited regulatory provision. Appellant was returned from his unauthorized absence on 5 March 1976. On 10 March 1976, charges, unrelated to the AWOL, were preferred and on 24 March 1976 additional charges, to include the AWOL, were also preferred. All charges were referred by the general court-martial authority on 22 April 1976. While appellant concedes that his ETS was extended beyond 21 September 1975 by the action of the convening authority’s designee, he sets the termination date of that extension at 21 October 1975 and argues, based on the second sentence of the paragraph quoted, supra, that because the general court-martial convening authority didn’t personally act to retain him beyond the 21 October date the Government is es-topped from bringing him to trial. He cites United States v. Kalt, 50 C.M.R. 95 (A.C.M. R.1975) and United States v. Simpson, 51 C.M.R. 218, 1 M.J." }, { "docid": "1137615", "title": "", "text": "608 (A.C.M.R.1975) as supportive of his conclusion. We find factual distinctions between those cases and the instant case that persuade us of their inapplicability to this case. The fallacy in appellant’s argument becomes apparent on reading Title 10 United States Code § 972: “An enlisted member of an armed force who— ... (2) is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority; . is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted.” All parties to this litigation agree that when appellant took “French leave” on 3 September 1975 he had, at a minimum, 17 days yet to complete on the original enlistment that had been due to expire on 21 September 1975. Appellant was liable, under the terms of the aforequoted statute, to serve upon his return to military control at least 17 more days. Thus, when appellant left military control on 3 September his original ETS of 21 September became inoperative. Appellant’s adjusted ETS upon the occasion of his return to military control on 5 March 1976 was, applying the language of the statute to the facts of this case, at least 22 March 1976. As charges had been preferred by the latter date, under the broad terms of the retention authorization, referred to earlier, this date was extended indefinitely. In short, there was never any need in this case for the general court-martial convening authority to take a personal action under the provisions of paragraph 2-Aa, AR 635-200. Consequently, we find the alleged jurisdictional error to be without merit. Detecting no other prejudicial errors and being satisfied that the sentence is appro priate — the findings of guilty and the sentence are affirmed. Judge DRIBBEN and Judge DeFORD concur. . See United States v. Torres, 3 M.J. 659 (A.C.M.R. en banc 1977). . Quote is from actual phrase taken from authorizing indorsement (R, App Ex VII); “SM”" }, { "docid": "1143498", "title": "", "text": "635 — 200 which regulates the separation of enlisted personnel. Paragraph 2-2d, of that regulation reads: “Subject to the provisions of section V of this chapter, an individual enlisted, inducted, or ordered to active duty normally will be discharged or released from active duty on the date upon which he completes the period for which enlisted, inducted or ordered to active duty.” (Footnote added). Section V, referred to in the last quoted paragraph, contains paragraph 2-15 which is applicable to our problem. It reads: “When retained in service awaiting trial or results of trial. When an individual is retained in service as prescribed in paragraph 2 — 4, the effective date of his discharge or release from active duty depends upon the result of his trial or the disposition made of his case.” Looking at paragraph 2-4, as we are instructed to do by paragraph 2-15, in order to learn how to avoid the mandate of paragraph 2-2d that an individual be discharged on the anniversary of his ETS, we find paragraph 2-4a, which reads: “A member may be retained beyond the expiration of his term of service by a general court-martial convening authority, or his designee, when an investigation of his conduct has been initiated with a view to trial by court-martial; charges have been preferred; or the member has been apprehended, arrested, confined, or otherwise restricted by appropriate authority. However, if charges have not been preferred, the member shall not be retained more than 30 days beyond the expiration of his term of service without the personal approval of the general court-martial convening authority concerned.” It is obvious from the similarity of language that this regulatory provision was intended to implement the Manual provision found at paragraph lid, supra. Where the Manual language is general and indefinite, the regulatory terminology is specific. The regulation not only clearly describes and limits the circumstances under which a member may be retained beyond his ETS for the purpose of trial, but it is also explicit as to who can authorize such a retention. I will concur, however, with those who observe" }, { "docid": "8305190", "title": "", "text": "and the precedents of this Court sanction the exercise of court-martial jurisdiction. However, the appellant submits that the general rule has been changed by paragraph 2-4, AR 635-200, c. 43, dated April 10, 1974. In material part, during the time in question, that paragraph provided: 2-4. When investigation is initiated with view to trial by court-martial or member is awaiting trial or result of trial, a. A member may be retained beyond the expiration of his term of service by a general court-martial convening authority, or his designee, when an investigation of his conduct has been initiated with a view to trial by court-martial; charges have been preferred; or the member has been apprehended, arrested, confined or otherwise restricted by the appropriate military authority. However, if charges have not been preferred, the member shall not be retained more than 30 days beyond the expiration of his terms of service without the personal approval of the general court-martial convening authority concerned. b. An individual who, on the date on which he would otherwise be eligible for discharge or release from active duty, is awaiting trial or result of trial by court-martial will not be discharged or released from active duty until final disposition of the court-martial charges. . . . Enlisted personnel under sentence to dishonorable or bad conduct discharge will not be discharged prior to completion of appellate review, unless so directed by Headquarters, Department of the Army. If the individual is absent without leave at the time appellate review is completed, the punitive discharge may be executed notwithstanding his absence. Appellant interprets the regulation to require the convening authority, or his designee, to take some affirmative action to his ETS date to continue court-martial jurisdiction. He argues that the Government failed to comply with its own regulation and that failure precluded the exercise of jurisdiction. Contrarily, the Government submits that the regulation imposes no additional requirements to retain jurisdiction, and if it does, those requirements were met by the convening authority’s referral of the charges to trial. The cited portions of the regulation do not specifically require any particular" } ]

[ { "docid": "542813", "title": "", "text": "to Complt. ff 5.) Plaintiff claims that these grounds are identical to those tried and determined in her favor in the New York action. However, after she was served by publication in the Florida action, she did not appear and defaulted therein rather than risk modification of the support award granted in New York. See Lynn v. Lynn, 302 N.Y. 193, 97 N.E.2d 748, cert. denied, 342 U.S. 849, 72 S.Ct. 72, 96 L.Ed. 640 (1951). Plaintiff claims that because of this risk she is precluded from exercising her right to invoke the full faith and credit provision of the United States Constitution (Art. 4, § 1) in the Florida action. See Estin v. Estin, 334 U.S. 541, 68. S.Ct. 1213, 92 L.Ed. 1561 (1948). Armed with these arguments, plaintiff returned to the New York Supreme Court seeking an injunction against defendant’s prosecution of the Florida action. Justice Mangan denied the injunction, stating in pertinent part that “as the pendency of an action is an indispensable prerequisite for the granting of an injunction, the court is without power to grant the relief now sought * * *. This procedural defect precludes consideration of the question of the husband’s domicile and the other issues raised by movant.” Rosenstiel v. Rosenstiel, 30758/1962, N.Y.Sup.Ct., April 21, 1967. (Citations omitted.) Plaintiff then appealed to the Appellate Division and moved for an order restraining defendant from prosecuting the Florida divorce action pending the hearing and determination of her appeal, but the application for a stay was denied on May 4, 1967. On the afternoon of that date, defendant husband’s Florida counsel filed a Praecipe for Default or Decree Con Professo and a default against plaintiff was entered. On May 5, 1967, after consultation with the Florida trial judge, the morning of May 12, 1967 was set down as the date for a final divorce hearing. The rest of the relevant facts have been previously set forth: a final judgment of divorce was signed and filed at 11:28 A.M. on May 12, 1967, the restraining order was granted some five hours later and the divorce was" } ]

[ { "docid": "542829", "title": "", "text": "recording steps would take place on that same day. It does not seem likely that when counsel were informed of the restraining order on the morning of May 13, 1967, they thought there was anything else they might do to comply with such order. Plaintiff argues that under Florida law the judgment is not deemed valid until recorded by the Clerk in the progress docket and is not deemed entered until it has been recorded by the Clerk in the Circuit Court Minute Book. Whether this argument has merit need not be considered herein since the Court holds that the order of May 12, 1967 did not require defendant to take any affirmative action with regard to the finalization of the divorce decree. Accordingly, plaintiff’s motion to hold defendant in contempt is denied. Conclusions This Court having found that there is no basis for granting plaintiff a preliminary injunction nor for holding defendant in contempt, plaintiff’s motion is in all respects denied. The findings of fact and conclusions of law, as required by Rule 52(a) of the Federal Rules of Civil Procedure, are contained herein. It is so ordered. . The alleged circumstances surrounding the Mexican divorce decree, its nullification and eventual reinstatement have all the elements of a master work of intrigue. No detailed discussion of these events need be gone into since they are fully examined in Justice Greenberg’s opinion in Rosenstiel v. Rosenstiel, 43 Misc.2d 462, 464-466, 251 N.Y.S.2d 565, 568-569 (Sup.Ct.) reversed on other grounds, 21 App.Div.2d 635, 253 N.Y.S.2d 208 (1st Dep’t 1964), aff’d. 16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709 (1965), cert. denied, 384 U.S. 971, 86 S.Ct. 1861, 16 L.Ed.2d 682 (1966). Suffice it to say that it is alleged that during the pendency of the. Connecticut action, defendant, under the pseudonym “Samuel Goldsmith”, fraudulently and without notice to plaintiff petitioned the Mexican court to nullify and vacate plaintiff's prior Mexican divorce decree on the ground that such decree had been entered without notice to the fictional “Samuel Goldsmith” in violation of his rights as a creditor of plaintiff and her" }, { "docid": "542805", "title": "", "text": "OPINION TENNEY, District Judge. On May 12, 1967, at 4:25 P.M., a judge of this court signed ex parte an Order to Show Cause in the within matter which provided inter alia: [T]hat pending the hearing and determination of plaintiff’s motion for a temporary injunction herein, the defendant LEWIS S. ROSENSTIEL, and his attorneys, agents and all other persons acting for or on his behalf, be and they hereby are — pursuant to Rule 65(b) of the Federal Rules of Civil Procedure — restrained from prosecuting, going forward or otherwise taking or procuring to be taken or entered — by default — any Judgment or Decree of Divorce against the plaintiff herein, in the defendant’s pending action for a divorce instituted by him in the Circuit Court of the 11th Judicial Circuit of Florida, in and for Dade County, Florida, on or about March 24, 1967 * * * This temporary relief was sought in conjunction with plaintiff’s motion for a preliminary injunction seeking the same -relief. At the foot of the order, it was stated that no notice to defendant or his counsel was given because of the danger that after notice defendant might entef [a] final decree in the Florida action. The injury is that entry of the Judgment in Florida before hearing the motion to this Court would render academic the prayer for injunctive relief in the complaint here and for the same reason the injury would be irreparable. However, unbeknownst to the Court (and obviously without plaintiff’s knowledge as well), a Final Judgment of Divorce was obtained by defendant against plaintiff in the Florida action at 11:28 A.M. on Friday, May 12, 1967, approximately five hours before the temporary restraining order was granted. This Judgment, while filed on the date rendered, was not “entered” or “recorded” in the Circuit Court Minute Book until the following Monday, May 15, 1967. The aforementioned order to show cause, originally scheduled to be heard on May 16, 1967, was adjourned from time to time at the request of the parties until oral argument was eventually heard by this Court on" }, { "docid": "542827", "title": "", "text": "to final judgment some five hours prior to the signing of the restraining order. The divorce decree was signed by the presiding judge and filed for the record at 11:28 A.M. The divorce decree was entered in the progress docket on Monday, May 15, 1967, and was immediately forwarded to a clerk to be recorded in the minute book. Plaintiff claims that defendant’s contemptuous conduct consisted of failing to take steps to prevent the Clerk of the Court from acting on May 15, 1967, eoncededly after defendant’s Florida and New York counsel were aware of the substance of the restraining order. The Court finds this contention without merit. Interpreting the restraining order strictly, defendant was restrained from taking any affirmative action to obtain the Florida divorce. By the time that defendant’s counsel was made aware of such order, any affirmative action had already been completed. In short, I do not consider defendant’s inaction to be a violation of the temporary restraining order. Indeed, had the order required the taking of affirmative action by defendant, I am convinced that the ex parte judge would have notified opposing counsel and given them an opportunity to be heard on the question because of the more stringent test to be utilized where mandatory action is sought. All factors lead to the conclusion that defendant and his counsel are not in contempt. If defendant were so anxious to act, why was nothing done from March 24, 1967 until May 4, 1967? It would appear that no greater sanctions would be incurred by violating a restraining order of the New York State courts than an order of this court. Moreover, if defendant so desired, the entries that were made on May 15, 1967 could have been made on May 12,1967, immediately after the filing of the decree, by simply asking the Clerk's Office for such a procedure to be followed. It does not appear that such a request was made. It is perfectly obvious that counsel for defendant thought that once the divorce decree was filed nothing further was to be done and that any further" }, { "docid": "542826", "title": "", "text": "318 F.2d 818 (2d Cir.) (per curiam), cert. denied, 375 U.S. 831, 84 S.Ct. 78, 11 L.Ed.2d 63 (1963). Moreover, the absence of wilfulness will not be a defense to a civil contempt motion. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 93 L.Ed. 599 (1949); United States v. Ross, 243 F.Supp. 496 (S.D.N.Y.1965). However, the Court is of the opinion that the temporary restraining order, having been granted ex parte, must be construed most strictly against the party seeking to punish the alleged contemnor. Also, it must be borne in mind that the order was in the nature of a prohibitory restraining order rather than a mandatory one and, as hereinbefore stated, an application for mandatory relief will be more stringently considered than will a motion for a prohibitory injunction. With these general principles set forth, I turn to a consideration of the case at bar. The pertinent provisions of the May 12,1967 restraining order have been set forth supra. It is not disputed that the Florida divorce action proceeded to final judgment some five hours prior to the signing of the restraining order. The divorce decree was signed by the presiding judge and filed for the record at 11:28 A.M. The divorce decree was entered in the progress docket on Monday, May 15, 1967, and was immediately forwarded to a clerk to be recorded in the minute book. Plaintiff claims that defendant’s contemptuous conduct consisted of failing to take steps to prevent the Clerk of the Court from acting on May 15, 1967, eoncededly after defendant’s Florida and New York counsel were aware of the substance of the restraining order. The Court finds this contention without merit. Interpreting the restraining order strictly, defendant was restrained from taking any affirmative action to obtain the Florida divorce. By the time that defendant’s counsel was made aware of such order, any affirmative action had already been completed. In short, I do not consider defendant’s inaction to be a violation of the temporary restraining order. Indeed, had the order required the taking of affirmative action by defendant, I" }, { "docid": "23282577", "title": "", "text": "to the poor while granting such review to all others.” Griffin v. Illinois, 1956, 351 U.S. 12, 13, 76 S.Ct. 585, 588, 100 L.Ed. 891. The district court, after declaring that it had jurisdiction over the controversy, found no transgression of constitutional rights in the administration of this statute. I would reverse in part and hold that under present Florida practice the indigent mother and child plaintiffs seeking to appeal from a change of custody order are entitled to a free transcript of the custody hearings. A chronological review of the facts will sharpen the focus on the important constitutional considerations. In 1958 plaintiff Dawn Elaine Brown was bom to the union of plaintiff Gayle (Brown) Marden and James Brown. Three years later the natural parents were divorced and custody of Dawn Elaine was awarded by decree to the mother. On June 1, 1966, the Florida Circuit Court which rendered the divorce and custody decree transferred custody .jurisdiction of Dawn Elaine to the Juvenile Court wherein James Brown filed suit for a change of custody of Dawn Elaine. See State ex rel. Marden v. Chastain, 197 So.2d 561 (Fla.App.1967), cert. discharged 207 So.2d 6 (Fla.1968). On May 8, 1967, after more than a year of hearings, custody of the then 9-year-old plaintiff was awarded to her father, with whom she had not maintained a close family relationship for six years. The several hearings held prior to the final order of the Juvenile and Domestic Relations Court were recorded entirely by a court stenographer. The cost of transcribing these stenographic notes is presently $2500.00. The plaintiffs, mother and child, secured the services of Tobias Simon, Esq. and immediately appealed the order of custody change. Florida’s appellate court rules require that an appellant furnish an adequate record for the appellate court or face summary dismissal of his appeal. Rules 3.3 and 3.6(a), Florida Appellate Rules, 32 F.S.A.; Brown v. Householder, 134 So.2d 801, 802-804 (Fla.App.1962). When Mr. Simon became aware of the choices facing him in compiling a record for the appeal of the custody determination, he filed a petition in the" }, { "docid": "542818", "title": "", "text": "and, indeed, would be one of the factors necessary to establish the diversity jurisdiction which permits this Court to act. Nor is there merit to defendant’s claim that plaintiff’s action is properly characterized as “forum shopping”. Such a doctrine implies the existence of two forums having jurisdiction over the dispute. Here, Justice Mangan specifically held that the New York State courts have no jurisdiction. Accordingly, this Court finds that the New York court’s refusal to grant an injunction presents no bar to the institution of the instant action nor to a consideration of plaintiff’s motions. Should a Preliminary Injunction Be Granted? Serious doubt exists as to whether plaintiff was entitled to certain of the temporary relief originally sought, i.e., an injunction against further prosecution by defendant of the Florida divorce action, which relief the May 12, 1967 temporary restraining order was designed to protect. While the court has jurisdiction over plaintiff’s declaratory judgment action, it appears that the power to grant the interlocutory injunction originally sought by plaintiff is lacking. Plaintiff’s motion which attempted to enjoin the parties from acting in Florida is, in effect, an effort to enjoin the Florida court proceedings and the statutory bar to an injunction created by 28 U.S.C. § 2283 (1964) cannot be “avoided by directing the injunction solely to a party as distinguished from the state court * * Studebaker Corp. v. Gittlin, 360 F.2d 692, 696 (2d Cir. 1966); see Oklahoma Packing Co. v. Oklahoma Gas & Elec. Co., 309 U.S. 4, 9, 60 S.Ct. 215, 84 L.Ed. 447 (1940); H. J. Heinz Co. v. Owens, 189 F.2d 505, 507 (9th Cir. 1951), cert. denied, 342 U.S. 905, 72 S.Ct. 294, 96 L.Ed. 677 (1952). Hence, in order for a federal district court to enjoin state court proceedings, the authority to do so must be found within one of the three exceptions enumerated in § 2283, to wit, (1) that the injunction is expressly authorized by an Act of Congress; (2) that it is necessary in aid of the federal court jurisdiction, or (3) that it is required to protect or effectuate" }, { "docid": "542808", "title": "", "text": "this Court to issue the temporary restraining order or entertain the underlying action instituted herein by plaintiff. Said action was commenced contemporaneously with the original motion of May 12, 1967 and seeks a declaratory judgment pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 (1964) to determine plaintiff’s rights under a certain ante-nuptial agreement entered into on the eve of their marriage and later amended. Additionally, plaintiff seeks a permanent injunction similar to the preliminary injunction requested in her original motion papers herein, and attorney’s fees of $100,000. Although the Rosenstiel marital discord has received an extensive airing in the public press and in legal proceedings and periodicals, a brief review of the pertinent facts may serve as a useful backdrop to the present dispute. Plaintiff wife and defendant husband were married in New York City on November 30, 1956. This was plaintiff’s second marriage, her prior marriage having been dissolved by a decree of absolute divorce in Mexico on October 2, 1954. The ante-nuptial agreement, as amended, provided that it should be interpreted and governed by New York law, and further provided that plaintiff’s right to receive any benefits thereunder was subject to defeasance in the event she predeceased the defendant or in the event that they were “divorced or separated by decree of a court of competent jurisdiction or separated by written agreement * * prior to the death of defendant. (Exh. A to Complt. at 10.) By October of 1961, the marital relationship appears to have cooled considerably and defendant allegedly demanded that plaintiff agree to a divorce on his terms, which she refused to do, whereupon she claims he abandoned her. On November 9, 1961, defendant instituted an action in Connecticut against her (a) for an annulment on the ground that he was fraudulently induced to marry her, and (b) for a divorce on the grounds of her cruel and inhuman treatment of him. Thereafter, on January 3, 1962, defendant amended his complaint in the Connecticut action to include an additional annulment count contending that plaintiff’s prior Mexican divorce decree was void in" }, { "docid": "542811", "title": "", "text": "64, 262 N.Y.S.2d 86, 209 N.E.2d 709 (1965). The Supreme Court then denied defendant husband’s writ of certiorari. 384 U.S. 971, 86 S.Ct. 1861, 16 L.Ed.2d 682 (1966). Shortly prior to denial of the writ of certiorari, plaintiff moved in the New York Supreme Court, pursuant both to the reservation in the judgment in the annulment action and N.Y. Domestic Relations Law, McKinney’s Consol. Laws, c. 14, §§ 236, 237, for a determination of her right to and the amount of her support and maintenance, and attorney’s fees. Her motion was granted and the trial was resumed for such purpose during the period September 13 to October 20, 1966 before Mr. Justice Helman. At that trial, defendant asserted as a defense to plaintiff’s claim the charge that plaintiff had been guilty of cruel and inhuman treatment and abandonment, and the testimony of witnesses was submitted in support of this charge. Section 236 of the Domestic Relations Law expressly authorizes the Court to require a husband to provide suitably for the support of his wife, notwithstanding her misconduct “unless such misconduct would itself constitute grounds for separation or divorce.” By decision dated November 30, 1966, the trial court found that plaintiff had not been guilty of conduct sufficient to sustain an action for divorce or separation against her and accordingly awarded her support and maintenance and attorney’s fees. Rosenstiel v. Rosenstiel, N.Y.L.J., Dec. 1, 1966, p. 17, col. 7 (Sup.Ct.1966). On June 6, 1967, the Appellate Division modified the award but expressly affirmed the trial court’s finding with respect to the wife’s misconduct. 28 App.Div.2d 651, 280 N.Y.S.2d 624 (1st Dep’t 1967) (per curiam). On November 29, 1967, this Appellate Division Order was affirmed without opinion by the New York Court of Appeals. N.Y.L.J., Dec. 1, 1967, p. 16, col. 1. On or about March 24, 1967, and while this appeal of the support decree was pending, defendant instituted the Florida divorce action alleging that his wife had “been guilty of extreme cruelty” to him and had “also been guilty of habitually indulging in a violent and ungovernable temper.” (Exh. H-l" }, { "docid": "22989793", "title": "", "text": "clients of due process and equal protection. Plaintiffs sought an injunction “restraining Bank of America, [the compliance officer], Bestline, Bestline Corporation, [the California Attorney General] and the Superior Court from issuing any further instructions to [the compliance officer] and/or Bank of America inconsistent with the claims of [the plaintiff class], and restraining Bank of America from any distribution of said funds inconsistent with the rights of [the plaintiff class] to share rat-ably therein.” Counsel then petitioned the Judicial Panel on Multi-district Litigation to treat the action as a tag-along case with the Florida cases. A conditional transfer order was summarily issued, but the defendants promptly moved to vacate that order. After a hearing, the defendants’ motion was granted on February 14, 1975, whereupon the parties returned to the Northern District of California, where the court notified all the parties that a hearing would be held on March 28, 1975. Plaintiffs’ counsel failed to appear at that hearing, and the court granted the defendants’ motion to dismiss under Rule 12(b) with prejudice. Judgment was entered, the plaintiffs appealed, and the Ninth Circuit dismissed the appeal without opinion. At this point, if not before, the California state court judgments became absolutely final and entitled to full faith and credit. On April 2, 1976, pursuant to a complaint filed by the Federal Trade Commission, the United States District Court for the Northern District of California found that Best-line had violated the injunction issued as a part of the 1971 consent decree. Among other things, the Federal Trade Commission obtained a judgment of $1,036,000 against the defendant, William Bailey, dated July 19, 1976, United States v. Bestline Products Corporation, 412 F.Supp. 754 (N.D.Cal. 1976). This money was paid into the registry of that Court. In the meantime, as will hereinafter be related, the District Court in Florida had brought the enforcement of the California state court judgment to a halt by enjoining Bestline from complying with the California state court judgment. The District Court in California transferred the $1,036,000 from its registry to that of the Southern District of Florida for distribution to members" }, { "docid": "542830", "title": "", "text": "of the Federal Rules of Civil Procedure, are contained herein. It is so ordered. . The alleged circumstances surrounding the Mexican divorce decree, its nullification and eventual reinstatement have all the elements of a master work of intrigue. No detailed discussion of these events need be gone into since they are fully examined in Justice Greenberg’s opinion in Rosenstiel v. Rosenstiel, 43 Misc.2d 462, 464-466, 251 N.Y.S.2d 565, 568-569 (Sup.Ct.) reversed on other grounds, 21 App.Div.2d 635, 253 N.Y.S.2d 208 (1st Dep’t 1964), aff’d. 16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709 (1965), cert. denied, 384 U.S. 971, 86 S.Ct. 1861, 16 L.Ed.2d 682 (1966). Suffice it to say that it is alleged that during the pendency of the. Connecticut action, defendant, under the pseudonym “Samuel Goldsmith”, fraudulently and without notice to plaintiff petitioned the Mexican court to nullify and vacate plaintiff's prior Mexican divorce decree on the ground that such decree had been entered without notice to the fictional “Samuel Goldsmith” in violation of his rights as a creditor of plaintiff and her former husband. A decree was entered ex parte by the Mexican court nullifying and vacating plaintiff’s prior divorce. Plaintiff was ultimately successful in having the latter nullification decree declared invalid, and, on May 28, 1983, the original divorce decree of October 2, 1954 was reinstated. . If plaintiff’s assertion that granting full faith and credit to the New York decree would bar the entry of the divorce, decree in Florida on the grounds alleged is valid, then she is not barred from raising the claim in the instant action in this court and such claim would survive the Florida decree. If her claim of full faith and credit is not well founded, her remedy would appear to have been to appear in the Florida action and assert that the defendant husband heroin was collaterally estopped in the Florida action from attacking the findings of the. New York court. However, at the time the instant action was instituted in this court, plaintiff had already defaulted in the Florida action so that it appears doubtful that such" }, { "docid": "18518329", "title": "", "text": "Pennsylvania court of the previous New York state court judgments. The appropriate test for determining whether the default judgment may be set aside because of fraud is set forth in Rosenstiel v. Rosenstiel. See Rosenstiel v. Rosenstiel, supra, 368 F.Supp. at 59-61. Rosenstiel v. Rosenstiel involved a matrimonial dispute where the husband obtained an ex parte Florida divorce without apprising the Florida court of prior New York proceedings. Id. at 55-56. In a third forum, namely, the District Court for the Southern District of New York, the wife argued that her husband had perpetrated a fraud upon the Florida court by failing to bring to the court’s attention the prior New York proceedings. Id. at 58. The wife argued that such fraud invalidated the Florida divorce. Id. In rejecting the wife’s argument the Ro-senstiel court noted that, “ ‘It is well-settled law that the fraud for which a judgment can be impeached must be in some matter other than the issue in controversy in the action.’ ” Rosenstiel v. Rosenstiel, supra, 368 F.Supp. at 60 (citing Crouse v. McVickar, 100 N.E. 697, 698, 207 N.Y. 213, 218 (1912)). The Rosenstiel court explained that the concealment of a prior judgment constitutes “intrinsic” fraud and, as such, was insufficient to collaterally attack the subsequent default judgment. Id. The court held that a judgment may only be set aside upon a showing that it was obtained by “extrinsic” fraud. Id. In order to establish “extrinsic” fraud the alleging party must demonstrate that the default judgment was “actively procured”. Id. In Rosenstiel, the court found that the wife’s default in the Florida court was not actively procured as she was “properly served by publication in the Florida proceeding and chose not to appear.” Id. The Pennsylvania cases are in accord with the holding of Rosenstiel v. Rosenstiel. See In re Kovalchick, 175 B.R. 863, 868 n. 1 (Bankr. E.D.Pa.1994) (citing state court case that held Pennsylvania courts will not set aside a judgment upon an allegation of intrinsic fraud). Thus, Raines must demonstrate that Debtors “actively procured” the Pennsylvania default judgment in order to" }, { "docid": "22943085", "title": "", "text": "GODBOLD, Chief Judge: After considering appellee’s petition for rehearing en banc and appellant’s response thereto, we grant rehearing and withdraw our prior opinion in this case, 669 F.2d 990 (5th Cir. 1982), and issue the following in its stead: Appellee Verone Fehlhaber brought this diversity of citizenship action in the United States District Court for the Southern District of Florida seeking recognition and enforcement of two judgments entered against her husband in a California action for legal separation. Appellant Fred Fehl-haber seeks to collaterally attack these judgments. I. Facts Verone and Fred were married in 1961 in New York. In 1967 they moved to Indian Creek Village, Florida, where they had built a house and where Fred eventually was elected mayor. Beginning in 1969 the Fehl-habers began spending several months a year in California. Fred contends that this was their vacation site; Verone contends that California was their domicile and vacations were taken in Florida. In April 1974 Verone left Fred and moved to California, and on May 17, 1974 she filed an action in California court for legal separation, spousal support, attorney’s fees, and a determination of her marital property rights. Fred was personally served in Florida June 5. Six days later, June 11, Fred filed a petition in Florida for dissolution of the marriage. Verone was personally served in California. Fred then made a special appearance in California to contest the court’s exercise of personal jurisdiction over him, and lost. He did not file an answer to the complaint, took no further action in defense of the cause, and was declared in default August 19. Fred pursued his Florida divorce action in defiance of an injunction by the California court. Verone never made an appearance in the Florida case, and the Florida court dissolved the Fehlhabers’ marriage July 23, 1974, before the California court had entered any judgments. Nevertheless, the California separation proceedings continued, and in a judgment entered October 4, 1974 the court ordered legal separation and granted Verone $8,500 a month in support retroactive to August 1 and $45,000 in attorney’s fees and court costs, while" }, { "docid": "542828", "title": "", "text": "am convinced that the ex parte judge would have notified opposing counsel and given them an opportunity to be heard on the question because of the more stringent test to be utilized where mandatory action is sought. All factors lead to the conclusion that defendant and his counsel are not in contempt. If defendant were so anxious to act, why was nothing done from March 24, 1967 until May 4, 1967? It would appear that no greater sanctions would be incurred by violating a restraining order of the New York State courts than an order of this court. Moreover, if defendant so desired, the entries that were made on May 15, 1967 could have been made on May 12,1967, immediately after the filing of the decree, by simply asking the Clerk's Office for such a procedure to be followed. It does not appear that such a request was made. It is perfectly obvious that counsel for defendant thought that once the divorce decree was filed nothing further was to be done and that any further recording steps would take place on that same day. It does not seem likely that when counsel were informed of the restraining order on the morning of May 13, 1967, they thought there was anything else they might do to comply with such order. Plaintiff argues that under Florida law the judgment is not deemed valid until recorded by the Clerk in the progress docket and is not deemed entered until it has been recorded by the Clerk in the Circuit Court Minute Book. Whether this argument has merit need not be considered herein since the Court holds that the order of May 12, 1967 did not require defendant to take any affirmative action with regard to the finalization of the divorce decree. Accordingly, plaintiff’s motion to hold defendant in contempt is denied. Conclusions This Court having found that there is no basis for granting plaintiff a preliminary injunction nor for holding defendant in contempt, plaintiff’s motion is in all respects denied. The findings of fact and conclusions of law, as required by Rule 52(a)" }, { "docid": "542807", "title": "", "text": "June 13, 1967. Accordingly, by the time this case came on to be heard before me, plaintiff’s original motion for a preliminary injunction had become moot. However, at oral argument and in plaintiff’s papers submitted in support of the motion, plaintiff seeks to convert the original prohibitory injunction into a mandatory one requiring defendant to undo the acts admittedly completed and to punish defendant and/or his attorneys, agents or others acting in his behalf for non-compliance with the temporary restraining order. In conjunction with the latter issue, plaintiff served a notice to take the depositions of defendant’s New York and Florida counsel and of the Honorable E. B. Leatherman, Clerk of the Circuit Court of the 11th Judicial Circuit, Dade County, Florida, and Fern E. Golding, Deputy Clerk of the same court. These depositions having been completed, the parties have, with the permission of the Court, filed further extensive evidentiary briefs and papers in support of their respective positions herein. The questions presented involve circumstances surrounding the Florida pro ceedings and, perforce, the jurisdiction of this Court to issue the temporary restraining order or entertain the underlying action instituted herein by plaintiff. Said action was commenced contemporaneously with the original motion of May 12, 1967 and seeks a declaratory judgment pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 (1964) to determine plaintiff’s rights under a certain ante-nuptial agreement entered into on the eve of their marriage and later amended. Additionally, plaintiff seeks a permanent injunction similar to the preliminary injunction requested in her original motion papers herein, and attorney’s fees of $100,000. Although the Rosenstiel marital discord has received an extensive airing in the public press and in legal proceedings and periodicals, a brief review of the pertinent facts may serve as a useful backdrop to the present dispute. Plaintiff wife and defendant husband were married in New York City on November 30, 1956. This was plaintiff’s second marriage, her prior marriage having been dissolved by a decree of absolute divorce in Mexico on October 2, 1954. The ante-nuptial agreement, as amended, provided that it should" }, { "docid": "18518328", "title": "", "text": "that Raines was lawfully served with process and that the default judgment was lawfully entered. As noted above, this Decision was the subject of appeal which was subsequently dismissed by the Superior Court of Pennsylvania. Because the jurisdictional issue was actually litigated in the Pennsylvania court, this Court, pursuant to 28 U.S.C. § 1738, is bound by that judgment even if it was erroneous. See Treinies v. Sunshine Mining Co., supra, 60 S.Ct. at 50, 308 U.S. at 78. Therefore, Raines is now precluded from collaterally attacking the Pennsylvania default judgment on a jurisdictional challenge. The Court next turns to the second exception to the last-in-time rule. Although Raines does not explicitly argue that fraud vitiates the default judgment, he implicitly contends that the judgment is tainted. For example, Raines argues that Debtors did not “reasonably calculate” to provide proper notice to Raines and they knowingly mailed the notice of entry of default judgment to an incorrect address. See Memorandum of Law at 2-3. In addition, Raines argues that the Debtors did not inform the Pennsylvania court of the previous New York state court judgments. The appropriate test for determining whether the default judgment may be set aside because of fraud is set forth in Rosenstiel v. Rosenstiel. See Rosenstiel v. Rosenstiel, supra, 368 F.Supp. at 59-61. Rosenstiel v. Rosenstiel involved a matrimonial dispute where the husband obtained an ex parte Florida divorce without apprising the Florida court of prior New York proceedings. Id. at 55-56. In a third forum, namely, the District Court for the Southern District of New York, the wife argued that her husband had perpetrated a fraud upon the Florida court by failing to bring to the court’s attention the prior New York proceedings. Id. at 58. The wife argued that such fraud invalidated the Florida divorce. Id. In rejecting the wife’s argument the Ro-senstiel court noted that, “ ‘It is well-settled law that the fraud for which a judgment can be impeached must be in some matter other than the issue in controversy in the action.’ ” Rosenstiel v. Rosenstiel, supra, 368 F.Supp. at 60" }, { "docid": "542817", "title": "", "text": "here. Justice Mangan found that “Aside from the jurisdictional impediment to granting the injunctive relief herein sought, the defendant has amply demonstrated, by documentary evidence and by testimony in the Supreme Court action and in a prior Civil Court action, long before commencement of the present action in Florida, that he is now domiciled in the State of Florida. There has been no showing by defendant to the contrary. Under the circumstances, the issuance of the injunction would be an unwarranted interference with the orderly judicial processes of the State of Florida.” (Emphasis added and citations omitted.) However, the prior portion of Justice Mangan’s opinion, as set forth supra, indicates that the decision reached by her was that the New York Supreme Court had no jurisdiction to grant the relief requested and that her finding that defendant was a Florida domiciliary was a mere gratuitous determination entitled to no weight on the instant motion. Moreover, accepting defendant’s Florida domicile as established, this would not be a factor that would prohibit this Court from taking action and, indeed, would be one of the factors necessary to establish the diversity jurisdiction which permits this Court to act. Nor is there merit to defendant’s claim that plaintiff’s action is properly characterized as “forum shopping”. Such a doctrine implies the existence of two forums having jurisdiction over the dispute. Here, Justice Mangan specifically held that the New York State courts have no jurisdiction. Accordingly, this Court finds that the New York court’s refusal to grant an injunction presents no bar to the institution of the instant action nor to a consideration of plaintiff’s motions. Should a Preliminary Injunction Be Granted? Serious doubt exists as to whether plaintiff was entitled to certain of the temporary relief originally sought, i.e., an injunction against further prosecution by defendant of the Florida divorce action, which relief the May 12, 1967 temporary restraining order was designed to protect. While the court has jurisdiction over plaintiff’s declaratory judgment action, it appears that the power to grant the interlocutory injunction originally sought by plaintiff is lacking. Plaintiff’s motion which attempted to" }, { "docid": "4707378", "title": "", "text": "provision for her. The respondent opposed the dower claim, asserting that since Sol Simons had divorced petitioner she had not been his wife at his death, and consequently was not entitled to dower under Florida law. Petitioner thereupon brought the instant action in the Circuit Court for Dade County in order to set aside the divorce decree and to obtain a declaration that the divorce, even if valid to alter her marital status, did not destroy or impair her claim to dower. The action was dismissed after trial, and the Florida District Court of Appeal for the Third District affirmed. 157 So. 2d 199. The Supreme Court of Florida declined to review the case, 166 So. 2d 151. We granted certiorari, 379 U. S. 877. We affirm. Petitioner’s counsel advised us during oral argument that he no longer challenged the judgment below insofar as it embodied a holding that the 1952 Florida divorce was valid and terminated the marital status of the parties. We therefore proceed to the decision of the question whether the Florida courts unconstitutionally denied petitioner’s dower claim. Petitioner argues that since she had not appeared in the Florida divorce action the Florida divorce court had no power to extinguish any right which she had acquired under the New York decree. She invokes the principle of Estin v. Estin, 334 U. S. 541, where this Court decided that a Nevada divorce court, which had no personal jurisdiction over the wife, had no power to terminate a husband’s obligation to provide the wife support as required by a pre-existing New York separation decree. As this was so, we there ruled that New York, in giving continued effect to the maintenance provisions of its separation decree, did not deny full faith and credit to the Nevada decree. See U. S. Const., Art. IV, § l. The application of the Estin principle to the instant case, petitioner contends, dictates that we hold the Florida courts to their constitutional duty to give effect to the New York decree, inherent in which is a preservation of her dower right. The short answer" }, { "docid": "542812", "title": "", "text": "her misconduct “unless such misconduct would itself constitute grounds for separation or divorce.” By decision dated November 30, 1966, the trial court found that plaintiff had not been guilty of conduct sufficient to sustain an action for divorce or separation against her and accordingly awarded her support and maintenance and attorney’s fees. Rosenstiel v. Rosenstiel, N.Y.L.J., Dec. 1, 1966, p. 17, col. 7 (Sup.Ct.1966). On June 6, 1967, the Appellate Division modified the award but expressly affirmed the trial court’s finding with respect to the wife’s misconduct. 28 App.Div.2d 651, 280 N.Y.S.2d 624 (1st Dep’t 1967) (per curiam). On November 29, 1967, this Appellate Division Order was affirmed without opinion by the New York Court of Appeals. N.Y.L.J., Dec. 1, 1967, p. 16, col. 1. On or about March 24, 1967, and while this appeal of the support decree was pending, defendant instituted the Florida divorce action alleging that his wife had “been guilty of extreme cruelty” to him and had “also been guilty of habitually indulging in a violent and ungovernable temper.” (Exh. H-l to Complt. ff 5.) Plaintiff claims that these grounds are identical to those tried and determined in her favor in the New York action. However, after she was served by publication in the Florida action, she did not appear and defaulted therein rather than risk modification of the support award granted in New York. See Lynn v. Lynn, 302 N.Y. 193, 97 N.E.2d 748, cert. denied, 342 U.S. 849, 72 S.Ct. 72, 96 L.Ed. 640 (1951). Plaintiff claims that because of this risk she is precluded from exercising her right to invoke the full faith and credit provision of the United States Constitution (Art. 4, § 1) in the Florida action. See Estin v. Estin, 334 U.S. 541, 68. S.Ct. 1213, 92 L.Ed. 1561 (1948). Armed with these arguments, plaintiff returned to the New York Supreme Court seeking an injunction against defendant’s prosecution of the Florida action. Justice Mangan denied the injunction, stating in pertinent part that “as the pendency of an action is an indispensable prerequisite for the granting of an injunction, the court" }, { "docid": "542806", "title": "", "text": "stated that no notice to defendant or his counsel was given because of the danger that after notice defendant might entef [a] final decree in the Florida action. The injury is that entry of the Judgment in Florida before hearing the motion to this Court would render academic the prayer for injunctive relief in the complaint here and for the same reason the injury would be irreparable. However, unbeknownst to the Court (and obviously without plaintiff’s knowledge as well), a Final Judgment of Divorce was obtained by defendant against plaintiff in the Florida action at 11:28 A.M. on Friday, May 12, 1967, approximately five hours before the temporary restraining order was granted. This Judgment, while filed on the date rendered, was not “entered” or “recorded” in the Circuit Court Minute Book until the following Monday, May 15, 1967. The aforementioned order to show cause, originally scheduled to be heard on May 16, 1967, was adjourned from time to time at the request of the parties until oral argument was eventually heard by this Court on June 13, 1967. Accordingly, by the time this case came on to be heard before me, plaintiff’s original motion for a preliminary injunction had become moot. However, at oral argument and in plaintiff’s papers submitted in support of the motion, plaintiff seeks to convert the original prohibitory injunction into a mandatory one requiring defendant to undo the acts admittedly completed and to punish defendant and/or his attorneys, agents or others acting in his behalf for non-compliance with the temporary restraining order. In conjunction with the latter issue, plaintiff served a notice to take the depositions of defendant’s New York and Florida counsel and of the Honorable E. B. Leatherman, Clerk of the Circuit Court of the 11th Judicial Circuit, Dade County, Florida, and Fern E. Golding, Deputy Clerk of the same court. These depositions having been completed, the parties have, with the permission of the Court, filed further extensive evidentiary briefs and papers in support of their respective positions herein. The questions presented involve circumstances surrounding the Florida pro ceedings and, perforce, the jurisdiction of" }, { "docid": "542831", "title": "", "text": "former husband. A decree was entered ex parte by the Mexican court nullifying and vacating plaintiff’s prior divorce. Plaintiff was ultimately successful in having the latter nullification decree declared invalid, and, on May 28, 1983, the original divorce decree of October 2, 1954 was reinstated. . If plaintiff’s assertion that granting full faith and credit to the New York decree would bar the entry of the divorce, decree in Florida on the grounds alleged is valid, then she is not barred from raising the claim in the instant action in this court and such claim would survive the Florida decree. If her claim of full faith and credit is not well founded, her remedy would appear to have been to appear in the Florida action and assert that the defendant husband heroin was collaterally estopped in the Florida action from attacking the findings of the. New York court. However, at the time the instant action was instituted in this court, plaintiff had already defaulted in the Florida action so that it appears doubtful that such a defense was still available to her or could have been preserved by the injunctive process. . Although the full faith and credit argument is not frivolous, it is by no means free from doubt. Defendant argues that the Florida law as to erúel and inhuman treatment is different than the New York law so that he is not bound by the New York decision. In answer to this, plaintiff points to Aghnides v. Aghnides, 159 N.Y.S.2d 343 (Sup.Ct.), aff’d, 4 App.Div.2d 498, 167 N.Y.S.2d 201 (1st Dep’t 1957), cert. denied. 358 U.S. 823, 79 S.Ct. 36, 3 L.Ed.2d 63 (1958), wherein it was stated: “The only basis on which the defendant herein could hope to succeed in Indiana is on the theory that the Indiana law is different from ours and that the conduct of his wife, held by our courts not to give him just cause for leaving her, would be regarded by the Indiana courts as grounds for a divorce. Apart from the fact that such a holding would appear to be" } ]

[ { "docid": "22416851", "title": "", "text": "rather than restrained competition. It also held the evidence insufficient to show that respondents had acted in concert. Doubt as to the correctness of the decision on questions important in antitrust litigation prompted us to grant certiorari. 340 U. S. 863. The Court of Appeals erred in holding that an agreement among competitors to fix maximum resale prices of their products does not violate the Sherman Act. For such agreements, no less than those to fix minimum prices, cripple the freedom of traders and thereby restrain their ability to sell in accordance with their own judgment. We reaffirm what we said in United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 223: “Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se.” The Court of Appeals also erred in holding the evidence insufficient to support a finding by the jury that respondents had conspired to fix maximum resale prices. The jury was authorized by the evidence to accept the following as facts: Seagram refused to sell to petitioner and others unless the purchasers agreed to the maximum resale price fixed by Seagram. Calvert was at first willing to sell without this restrictive condition and arrangements were made for petitioner to buy large quantities of Calvert liquor. Petitioner subsequently was informed by Calvert, however, that the arrangements would not be carried out because Calvert had “to go along with Seagram.” Moreover, about this time conferences were held by officials of the respondents concerning sales of liquor to petitioner. Thereafter, on identical terms as to the fixing of retail prices, both Seagram and Calvert resumed sales to other Indiana wholesalers who agreed to abide by such conditions, but no shipments have been made to petitioner. The foregoing is sufficient to justify the challenged jury finding that respondents had a unity of purpose or a common design and understanding when they forbade their purchasers to exceed the fixed ceilings. Thus, there is support for the conclusion that" } ]

[ { "docid": "22932872", "title": "", "text": "is made in the course of interstate or foreign commerce, or if such person engages in such practice to such an extent as substantially to restrain or prevent transactions in interstate or foreign commerce in any such products, or if the direct effect of such requirement is to prevent, deter, hinder, or restrict other persons from selling or offering for sale any such products to such retailer in interstate or foreign commerce.” 27 U. S. C. § 205(a). See 27 CFR §§8.3, 8.11, 8.23 (1982). Justice Stevens, with whom Justice White joins, concurring in the judgment. Under the California designation statute, each distiller is empowered to decide whether to regulate its product distribution within California by designating those importers that may sell its product. The statute contemplates a private market decision but provides a nonmarket mechanism for enforcing the decision. Hybrid restraints of this character require analysis that is different from a public regulatory scheme on the one hand, see, e. g., Exxon Corp. v. Governor of Maryland, 437 U. S. 117; Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U. S. 35, and a purely private restraint on the other, see, e. g., Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36; Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373. We have twice held that hybrid price-fixing restraints are prohibited by the Sherman Act. Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384; California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97. In both cases the private decision to fix prices was unsupervised by the State but made effective by state law. The facts of Schwegmann, involving the Louisiana marketing practices of two out-of-state distributors of gin and whiskey, are particularly instructive. The distributors sought to control the retail prices of their products by obtaining from individual retailers a written agreement that they would comply with the minimum retail price schedules established by the distributors. These resale price maintenance agreements, which otherwise violated the Sherman Act, were rendered lawful by the Miller-Tydings Act" }, { "docid": "6034245", "title": "", "text": "holds the power to prevent price competition by dictating the prices charged by wholesalers”, and quoted Justice Hughes’ remark in Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 408, 31 S.Ct. 376, 384, 55 L.Ed. 502 (1911), that such vertical control destroys horizontal competition as effectively as if wholesalers “formed a combination and endeavored to establish the same restrictions ... by agreement with each other”, and then passed on to the more difficult issues in the case, namely, whether the state’s involvement was sufficient to establish antitrust immunity under Parker v. Brown, supra, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, and whether the California statute was within the protection of the Twenty-First Amendment, which we shall discuss below. The challenged sections of the ABC Law plainly are not a resale price maintenance scheme of the sort condemned in Midcal. In contrast to Midcal, each wholesaler is completely free to file whatever price schedules he desires, and his schedule now has no controlling effect on retail prices since § 101-bbb, which prohibited retail sales at a price less than that established in a retail price schedule, has been declared to be unconstitutional by the New York Court of Appeals. See Mezzetti Associates, Inc. v. State Liquor Authority, 51 N.Y.2d 761, 432 N.Y.S.2d 372, 411 N.E.2d 791 (1980). Midcal simply did not deal with a statute like New York’s which merely requires wholesalers to post and adhere to their own unilaterally determined prices and nothing more. However, the inappositeness of Midcal is not the end of the matter. It can be argued that § 101-b is nevertheless inconsistent with § 1 of the Sherman Act since it forces each wholesaler to inform other wholesaler of its prices and then to adhere for a month to them (or a lowered price meeting that of a competitor filed within three days), unless prior written permission of the SLA is obtained, and that if this had been done pursuant to an agreement, the agreement would have constituted a violation of § 1 under such cases as American" }, { "docid": "22932873", "title": "", "text": "& Sons, Inc. v. Hostetter, 384 U. S. 35, and a purely private restraint on the other, see, e. g., Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36; Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373. We have twice held that hybrid price-fixing restraints are prohibited by the Sherman Act. Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384; California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97. In both cases the private decision to fix prices was unsupervised by the State but made effective by state law. The facts of Schwegmann, involving the Louisiana marketing practices of two out-of-state distributors of gin and whiskey, are particularly instructive. The distributors sought to control the retail prices of their products by obtaining from individual retailers a written agreement that they would comply with the minimum retail price schedules established by the distributors. These resale price maintenance agreements, which otherwise violated the Sherman Act, were rendered lawful by the Miller-Tydings Act and a Louisiana fair trade law. But a New Orleans retailer refused to sign such an agreement and sold the distributors’ products at cutrate prices. The distributors responded by seeking to enjoin the retailer from selling the products at less than the minimum prices fixed by their schedules. The basis for their complaint was a Louisiana statute that condemned as unfair competition a sale at less than the price stipulated in a fair trade contract, even though the particular retailer was not a party to that contract. This Court held that the Sherman Act, as amended by the Miller-Tydings Act, precluded enforcement of the nonsigner provision. Even though the private agreements to fix resale prices were not unlawful, Schwegmann held that the distributor could not place the same restraint on the market by using the state statute as a “club.” 341 U. S., at 395 (emphasis in original). The Court’s holding teaches that a state statute that facilitates the manufacturer’s decision to impose a vertical restriction is not lawful simply because the Sherman Act permits" }, { "docid": "22643800", "title": "", "text": "at identical prices. Referring to congressional and state legislative studies, the court observed that resale price maintenance has little positive impact on either temperance or small retail stores. See infra, at 112-113. In the instant case, the State Court of Appeal found the analysis in Rice squarely controlling. 90 Cal. App. 3d, at 984, 153 Cal. Rptr., at 760. The court ordered the Department of Alcoholic Beverage Control not to enforce the resale price maintenance and price posting statutes for the wine trade. The Department, which in Rice had not sought certiorari from this Court, did not appeal the ruling in this case. An appeal was brought by the California Retail Liquor Dealers Association, an intervenor. The California Supreme Court declined to hear the case, and the Dealers Association sought certiorari from this Court. We granted the writ, 444 U. S. 824 (1979), and now affirm the decision of the state court. II The threshold question is whether California’s plan for wine pricing violates the Sherman Act. This Court has ruled consistently that resale price maintenance illegally restrains trade. In Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373, 407 (1911), the Court observed that such arrangements are “designed to maintain prices . . . , and to prevent competition among those who trade in [competing goods].” See Albrecht v. Herald Co., 390 U. S. 145 (1968) ; United States v. Parke, Davis & Co., 362 U. S. 29 (1960); United States v. A. Schrader’s Son, Inc., 252 U. S. 85 (1920). For many years, however, the Miller-Tydings Act of 1937 permitted the States to authorize resale price maintenance. 50 Stat. 693. The goal of that statute was to allow the States to protect small retail establishments that Congress thought might otherwise be driven from the marketplace by large-volume discounters. But in 1975 that congressional permission was rescinded. The Consumer Goods Pricing Act of 1975, 89 Stat. 801, repealed the Miller-Tydings Act and related legislation. Consequently, the Sherman Act’s ban on resale price maintenance now applies to fair trade contracts unless an industry or" }, { "docid": "10176357", "title": "", "text": "selling is or is not a party to such a contract or agreement, is unfair competition and is actionable at the suit of any person damaged thereby.” Before the enactment of the McGuire Act, this Court in 1951 in Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, considered whether the Miller-Tydings Act, 50 Stat. 693, 15 U. S. C. § 1, removed from the prohibition of the Sherman Act, 26 Stat. 209, 15 U. S. C. § 1 et seq., a state statute which authorized a trademark owner, by notice, to require a retailer who had not executed a written contract to observe resale price maintenance. Respondents in that case argued that since the Sherman Act outlawed “contracts” in restraint of trade and since the Miller-Tydings amendment to the Sherman Act excepted “contracts or agreements prescribing minimum prices for the resale” of a commodity where such contracts or agreements were lawful under state law, the Miller-Tydings Act therefore immunized all arrangements involving resale price maintenance authorized by state law. 341 U. S., at 387. After examining the history of the Miller-Tydings Act, the Court concluded that Congress had intended the words “contracts or agreements” as contained in that Act to be used “in their normal and customary meaning,” id., at 388, and to cover only arrangements whereby the retailer voluntarily agreed to be bound by the resale price restrictions. The Court held therefore that the state resale price maintenance law could not be applied to nonsigners — “recalcitrants . . . dragged in by the heels and compelled to submit to price fixing.” Id., at 390. The Court stated that: “It should be remembered that it was the state laws that the federal law was designed to accommodate. Federal regulation was to give way to state regulation. When state regulation provided for resale price maintenance by both those who contracted and those who did not, and the federal regulation was relaxed only as respects 'contracts or agreements/ the inference is strong that Congress left the noncontracting group to be governed by preexisting law.” Id., at 395. Shortly after" }, { "docid": "22643811", "title": "", "text": "operated to ‘repeal’ the Commerce Clause wherever regulation of intoxicating liquors is concerned would, however, be an absurd oversimplification. If the Commerce Clause had been pro tanto ‘repealed,’ then Congress would be left with no regulatory power over interstate or foreign commerce in intoxicating liquor. Such a conclusion would be .patently bizarre and is demonstrably incorrect.” The Court added a significant, if elementary, observation: “Both the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case.” Id., at 332. See Craig v. Boren, supra, at 206. This pragmatic effort to harmonize state and federal powers has been evident in several decisions where the Court held liquor companies liable for anticompetitive conduct not mandated by a State. See Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U. S. 211 (1951); United States v. Frankfort Distilleries, Inc., 324 U. S. 293 (1945). In Schwegmann Bros. v. Calvert Corp., 341 U. S. 384 (1951), for example, a liquor manufacturer attempted to force a distributor to comply with Louisiana’s resale price maintenance program, a program similar in many respects to the California system at issue here. The Court held that because the Louisiana statute violated the Sherman Act, it could not be enforced against the distributor. Fifteen years later, the Court rejected a Sherman Act challenge to a New York law requiring liquor dealers to attest that their prices were “no higher than the lowest price” charged anywhere in the United States. Joseph E. Seagram, & Sons, Inc. v. Hostetter, supra. The Court concluded that the statute exerted “no irresistible economic pressure on the [dealers] to violate the Sherman Act in order to comply,” but it also cautioned that “[n]othing in the Twenty-first Amendment, of course, would prevent enforcement of the Sherman Act” against an interstate conspiracy to fix liquor prices. Id., at 45-46. See Burke v. Ford, 389 U. S. 320 (1967) (per curiam). These decisions demonstrate that" }, { "docid": "22643802", "title": "", "text": "program enjoys a special antitrust immunity. California’s system for wine pricing plainly constitutes resale price maintenance in violation of the Sherman Act. Schwegmann Bros. v. Calvert Corp., 341 U. S. 384 (1951); see Albrecht v. Herald Co., supra; Kiefer-Stewart Co. v. Joseph E. Seagram, & Sons, 340 U. S. 211 (1951); Dr. Miles Medical Co. v. John D. Park & Sons Co., supra. The wine producer holds the-power to prevent price competition by-dictating the prices charged by wholesalers. As Mr. Justice Hughes pointed out in Dr. Miles, such vertical control destroys horizontal competition as effectively as if wholesalers “formed a combination and endeavored to establish the same restrictions ... by agreement with each other.” 220 U. S., at 408. Moreover, there can be no claim that the California program is simply intrastate regulation beyond the reach of the Sherman Act. See Sehwegmann Bros. v. Calvert Corp., supra; Burke v. Ford, 389 U. S. 320 (1967) (per curiam). Thus, we must consider whether the State’s involvement in the price-setting program is sufficient to establish antitrust immunity under Parker v. Brown, 317 U. S. 341 (1943). That immunity for state regulatory programs is grounded in our federal structure. “In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.” Id., at 351. In Parker v. Brown, this Court found in the Sherman Act no purpose to nullify state powers. Because the Act is directed against “individual and not state action,” the Court concluded that state regulatory programs could not violate it. Id., at 352. Under the program challenged in Parker, the State Agricultural Prorate Advisory Commission authorized the organization of local cooperatives to develop marketing policies for the raisin crop. The Court emphasized that the Advisory Commission, which was appointed by the Governor, had to approve cooperative policies following public hearings: “It is the state which has created the machinery for establishing the prorate program. . ." }, { "docid": "23538939", "title": "", "text": "qualifications to the per se rule applies in this case. Section 101-bb directly restricts retail prices, and retailers are subject to penalties for failure to adhere to the resale price schedules. The New York statute, moreover, applies to all wholesalers and retailers of liquor. We have noted that industrywide resale price maintenance also may facilitate cartelization. Continental T. V., Inc. v. GTE Sylvania Inc., supra, at 51, n. 18. Mandatory industrywide resale price fixing is virtually certain to reduce interbrand competition as well as intrabrand competition, because it prevents manufacturers and wholesalers from allowing or requiring retail price competition. The New York statute specifically forbids retailers from reducing the minimum prices set by wholesalers. The antitrust violation in this case is essentially similar to the violation in Midcal. It is true that the wholesalers in Midcal were required to adhere to a single fair trade contract or price schedule for each geographical area. 445 U. S., at 99-100. Midcal therefore involved horizontal as well as vertical price fixing. Although the horizontal restraint in Midcal may have provided an additional reason for invalidating the statute, our decision in Midcal rested on the “vertical control” of wine producers, who held “the power to prevent price competition by dictating the prices charged by wholesalers.” Id., at 103. As we explained in Rice v. Norman Williams Co., 458 U. S. 654 (1982), the California statute was invalidated because “it mandated resale price maintenance, an activity that has long been regarded as a per se violation of the Sherman Act.” Id., at 659-660 (emphasis in original; footnote omitted). We hold that ABC Law § 101-bb is inconsistent with § 1 of the Sherman Act. B In Parker v. Brown, 317 U. S. 341 (1943), the Court held that the Sherman Act does not apply “to the anticompetitive conduct of a State acting through its legislature.” Hallie v. Eau Claire, 471 U. S. 34, 38 (1985). Parker v. Brown rests on principles of federalism and state sovereignty. Under those principles, “an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly" }, { "docid": "10176365", "title": "", "text": "absent approval by Congress, clearly illegal under the Sherman Act, 26 Stat. 209,15 U. S. C. § 1 et seq. Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373. “Fixing minimum prices, like other types of price fixing, is illegal per se.” Schwegmann Bros. v. Calvert Distillers Corp., supra, at 386. Congress, however, in the McGuire Act has approved state statutes sanctioning resale price maintenance schemes such as those involved here. Whether it is good policy to permit such laws is a matter for Congress to decide. Where the statutory language and the legislative history clearly indicate the purpose of Congress that purpose must be upheld. We therefore affirm the judgments of the Supreme Court of Ohio. Affirmed. The Supreme Court of Ohio stated: “The facts in both cases are similar and the law applicable is the same. The appeals will be treated together, since the assignments of errors in both cases are exactly the same.” 174 Ohio St. 487, 190 N. E. 2d 460. Hudson, in its second amended answer to the cross-petition, allegedly raised the following defenses: “(1) Hudson did not wilfully resell at less than Lilly’s fair trade prices; “(2) Lilly, a foreign corporation, was not properly licensed to transact business in the State of Ohio; “(3) paragraph 6 of Lilly’s fair trade contract [which provides that: “Retailer agrees not to knowingly sell any of Manufacturer’s ‘Identified Commodities’ to any dealer who fails to observe the minimum retail resale prices established under Paragraph 3 hereof”] compelled retailers to enter into unlawful horizontal price fixing agreements in violation of Section 1 of the Sherman Anti-Trust Act . . . ; “(4) Lilly was not uniformly enforcing its fair trade program on trade-marked commodities in Ohio; and “(5) Lilly modified its fair trade program by abandoning enforcement on its prescription products in Ohio.” The issues on the cross-petition are pending in the Court of Common Pleas, Cuyahoga County; further proceedings have been stayed by that court pending the outcome of this appeal. The decision was affirmed by a 3-to-4 vote. The Ohio Constitution," }, { "docid": "22643801", "title": "", "text": "maintenance illegally restrains trade. In Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373, 407 (1911), the Court observed that such arrangements are “designed to maintain prices . . . , and to prevent competition among those who trade in [competing goods].” See Albrecht v. Herald Co., 390 U. S. 145 (1968) ; United States v. Parke, Davis & Co., 362 U. S. 29 (1960); United States v. A. Schrader’s Son, Inc., 252 U. S. 85 (1920). For many years, however, the Miller-Tydings Act of 1937 permitted the States to authorize resale price maintenance. 50 Stat. 693. The goal of that statute was to allow the States to protect small retail establishments that Congress thought might otherwise be driven from the marketplace by large-volume discounters. But in 1975 that congressional permission was rescinded. The Consumer Goods Pricing Act of 1975, 89 Stat. 801, repealed the Miller-Tydings Act and related legislation. Consequently, the Sherman Act’s ban on resale price maintenance now applies to fair trade contracts unless an industry or program enjoys a special antitrust immunity. California’s system for wine pricing plainly constitutes resale price maintenance in violation of the Sherman Act. Schwegmann Bros. v. Calvert Corp., 341 U. S. 384 (1951); see Albrecht v. Herald Co., supra; Kiefer-Stewart Co. v. Joseph E. Seagram, & Sons, 340 U. S. 211 (1951); Dr. Miles Medical Co. v. John D. Park & Sons Co., supra. The wine producer holds the-power to prevent price competition by-dictating the prices charged by wholesalers. As Mr. Justice Hughes pointed out in Dr. Miles, such vertical control destroys horizontal competition as effectively as if wholesalers “formed a combination and endeavored to establish the same restrictions ... by agreement with each other.” 220 U. S., at 408. Moreover, there can be no claim that the California program is simply intrastate regulation beyond the reach of the Sherman Act. See Sehwegmann Bros. v. Calvert Corp., supra; Burke v. Ford, 389 U. S. 320 (1967) (per curiam). Thus, we must consider whether the State’s involvement in the price-setting program is sufficient to establish antitrust immunity" }, { "docid": "6034244", "title": "", "text": "and was not severable. The California Retail Liquor Dealers Association intervened as a defendant when the Alcoholic Beverage Control Department refused to appeal. The California Supreme Court declined to hear the case, doubtless because it regarded the decision of the Court of Appeal as following inevitably from its own previous decision in Rice, and the Dealers Association sought and obtained certiorari from the Supreme Court of the United States. The Supreme Court was obliged to take the case as it found it. The California Court of Appeal had construed both parts of the statute, the fair trade contract provision and the alternative price posting provision, which was ruled to be nonseverable therefrom, to be part of a plan whereby all persons at various levels in the chain of distribution were forced to establish identical prices fixed by the brand owner for each brand of wine. Justice Powell was thus able to decide quite summarily that the scheme compelled by the California statute violated § 1 of the Sherman Act. He said that “[t]he wine producer holds the power to prevent price competition by dictating the prices charged by wholesalers”, and quoted Justice Hughes’ remark in Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 408, 31 S.Ct. 376, 384, 55 L.Ed. 502 (1911), that such vertical control destroys horizontal competition as effectively as if wholesalers “formed a combination and endeavored to establish the same restrictions ... by agreement with each other”, and then passed on to the more difficult issues in the case, namely, whether the state’s involvement was sufficient to establish antitrust immunity under Parker v. Brown, supra, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, and whether the California statute was within the protection of the Twenty-First Amendment, which we shall discuss below. The challenged sections of the ABC Law plainly are not a resale price maintenance scheme of the sort condemned in Midcal. In contrast to Midcal, each wholesaler is completely free to file whatever price schedules he desires, and his schedule now has no controlling effect on retail prices since" }, { "docid": "6034264", "title": "", "text": "policy in Midcal was as sharp as could be imagined. Contracts for resale price maintenance had long been held to be per se violations of § 1 of the Sherman Act. See, e.g., Dr. Miles Medical Co. v. John D. Park & Sons, supra, 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502; Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968). Although states had been permitted to sanction these by the Miller-Tydings Act of 1937, see note 6 supra, in order to “protect small retail establishments that Congress thought might otherwise be driven from the market place by large-volume discounters”, Midcal, supra, 445 U.S. at 102, 100 S.Ct. at 941-42. Congress rescinded that permission by the Consumer Goods Pricing Act of 1975. California was thus attempting to continue, with respect to alcoholic beverages, exactly what Congress had condemned. As against this strong federal interest, the Court found that California’s interest was extremely weak. This finding was made rather easy by the attitude taken by California itself. Justice Powell remarked that, “As the unusual posture of this case reflects, the State of California has shown less than an enthusiastic interest in its wine pricing system,” 445 U.S. at 111 n. 12, 100 S.Ct. at 946 n. 12, adding that “the state agency responsible for administering the program did not appeal the decision of the California Court of Appeal” which struck down the law. Id. Beyond this the Supreme Court of California in the Rice case, supra, 579 P.2d 476 (dealing with distilled liquors), which the Court of Appeal for the Third District found decisive in Midcal, 153 Cal.Rptr. 757, 760 (dealing with wine), had engaged in the balancing process and found the state’s interest in resale price maintenance to be small. After saying that the Supreme Court accords “respectful consideration and great weight to the views of the state’s highest court” on such a matter, quoting Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 100, 58 S.Ct. 443, 446, 82 L.Ed. 685 (1938), Justice Powell went on to summarize the findings of the California" }, { "docid": "23270367", "title": "", "text": "by the city, rather than by “contract, combination, or conspiracy.” I do not read our decisions necessarily to require proof of such concerted action as a prerequisite to a finding of preemption. Certainly, nothing we said in Rice supports such a narrow view of pre-emption. Our other decisions have found statutes in conflict with the Sherman Act because they eliminated price competition in the relevant market. In California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980), a wine wholesaler sought to enjoin enforcement of a California statute which effectively required it to sell wines at prices set by producers. The Court focused on the fact that the statute eliminated price competition, and held that the wine-pricing system constituted resale price maintenance in violation of the Sherman Act. The Midcal decision squarely controls the result here. Just as the statute challenged in Midcal compelled wine wholesalers to charge prices set by wine producers, Berkeley’s Ordinance compels landlords to charge prices set by the city. The city “holds the power to prevent price competition by dictating the prices charged” by landlords. Id., at 103. “[S]uch vertical control destroys horizontal competition as effectively as if [landlords] ‘formed a combination and endeavored to establish the same restrictions ... by agreement with each other.’” Ibid. (quoting Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373, 408 (1911)). Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384 (1951), is also directly on point. In Schwegmann, a Louisiana statute authorized liquor distributors to enforce agreements fixing minimum retail prices on their products against retailers who had not agreed to the price restrictions. The Court held that the statutory scheme amounted to resale price maintenance, in violation of the Sherman Act. To paraphrase the Court in Schwegmann, “when [the city] compels [landlords] to follow a parallel price policy, it demands private conduct which the Sherman Act forbids.” Id., at 389. “[W]hen [landlords] are forced to abandon price competition, they are driven into a compact in violation of the spirit of the proviso which forbids ‘horizontal’ price" }, { "docid": "277708", "title": "", "text": "the competing independent route dealers. The trial judge found that some retail dealers who sold to the route dealers were threatened with termination, and in at least one instance were cut off by The News. I. Application of the Fair Trade Laws to the Franchise Agreements The district court’s opinion relies heavily upon the conclusion that the agreements between the franchise dealers and The News amounted to an illegal conspiracy to fix maximum resale prices. There is no doubt that this agreement would be per se illegal under § 1 of the Sherman Act unless protected by the Fair Trade laws, Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968); Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1951); Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911). The “Carrier Agreement” clearly states that “the parties desire to avail themselves of the fair trade acts now and hereafter in effect.” The issue is whether they succeeded. In amending the Sherman Act § 1, the Miller-Tydings Act of 1937, 50 Stat. 693 (1937), provided that vertical contracts requiring resale price maintenance would be lawful in states which permitted such contracts, 15 U.S.C. § 1. Following the Court’s decision in Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035 (1951), which held that the Miller-Tydings Act did not permit enforcement of a resale price maintenance contract against nonsigning retailers, Congress passed the McGuire Act, 66 Stat. 631 (1952), amending § 5(a) of the Federal Trade Commission Act, 15 U.S.C. § 45(a), by adding language making clear that if the state statutory scheme permitted enforcement of resale price maintenance agreements against nonsigners these contracts and their enforcement would not constitute violations of the antitrust laws. The McGuire Act, like the Miller-Tydings Act before it, see 15 U.S.C. § 1, made clear that it intended to permit only vertical and not horizontal price maintenance agreements, see 15 U.S.C. § 45(a)(5). Since" }, { "docid": "22643812", "title": "", "text": "In Schwegmann Bros. v. Calvert Corp., 341 U. S. 384 (1951), for example, a liquor manufacturer attempted to force a distributor to comply with Louisiana’s resale price maintenance program, a program similar in many respects to the California system at issue here. The Court held that because the Louisiana statute violated the Sherman Act, it could not be enforced against the distributor. Fifteen years later, the Court rejected a Sherman Act challenge to a New York law requiring liquor dealers to attest that their prices were “no higher than the lowest price” charged anywhere in the United States. Joseph E. Seagram, & Sons, Inc. v. Hostetter, supra. The Court concluded that the statute exerted “no irresistible economic pressure on the [dealers] to violate the Sherman Act in order to comply,” but it also cautioned that “[n]othing in the Twenty-first Amendment, of course, would prevent enforcement of the Sherman Act” against an interstate conspiracy to fix liquor prices. Id., at 45-46. See Burke v. Ford, 389 U. S. 320 (1967) (per curiam). These decisions demonstrate that there is no bright line between federal and state powers over liquor. The Twenty-first Amendment grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system. Although States retain substantial discretion to establish other liquor regulations, those controls may be subject to the federal commerce power in appropriate situations. The competing state and federal interests can be reconciled only after careful scrutiny of those concerns in a “concrete case.” Hostetter v. Idlewild Liquor Corp., supra, at 332. B The federal interest in enforcing the national policy in favor of competition is both familiar and substantial. “Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms.” United States v.. Topeo Associates, Inc., 405 U. S. 596, 610 (1972). See Northern Pacific R. Co. v. United States, 356 U. S." }, { "docid": "23538938", "title": "", "text": "all New York liquor retailers. Resale price maintenance has been a per se violation of § 1 of the Sherman Act “since the early years of national antitrust enforcement.” Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752, 761 (1984). See Dr. Miles Medical Co. v. John D. Park & Sons Co,, 220 U. S. 373, 404-409 (1911). Our recent decisions recognize the possibility that a vertical restraint imposed by a single manufacturer or whole saler may stimulate interbrand competition even as . it reduces intrabrand competition. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 51-52 (1977). Accordingly, we have held that concerted nonprice restrictions imposed by a single manufacturer are to be judged under the rule of reason. Id., at 59. We also have held that a single manufacturer may announce resale prices in advance and refuse to deal with those who fail to comply. Monsanto Co. v. Spray-Rite Service Corp., supra, at 761; United States v. Colgate & Co., 250 U. S. 300, 307 (1919). Neither of these qualifications to the per se rule applies in this case. Section 101-bb directly restricts retail prices, and retailers are subject to penalties for failure to adhere to the resale price schedules. The New York statute, moreover, applies to all wholesalers and retailers of liquor. We have noted that industrywide resale price maintenance also may facilitate cartelization. Continental T. V., Inc. v. GTE Sylvania Inc., supra, at 51, n. 18. Mandatory industrywide resale price fixing is virtually certain to reduce interbrand competition as well as intrabrand competition, because it prevents manufacturers and wholesalers from allowing or requiring retail price competition. The New York statute specifically forbids retailers from reducing the minimum prices set by wholesalers. The antitrust violation in this case is essentially similar to the violation in Midcal. It is true that the wholesalers in Midcal were required to adhere to a single fair trade contract or price schedule for each geographical area. 445 U. S., at 99-100. Midcal therefore involved horizontal as well as vertical price fixing. Although the horizontal restraint in Midcal may" }, { "docid": "7238363", "title": "", "text": "88 L.Ed. 1024 (1943); United States v. Socony-Vacuum Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700 (1927); Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911). The Miller-Tydings Act, passed in 1937, amended the Sherman Act to permit such contracts where they were legal under state law, provided that they were not contracts “ . . . between manufacturers, or between wholesalers, or . between persons, firms or corporations in competition with each other.” In 1951 the Supreme Court held that it did not apply to price-fixing agreements made binding by state law on “non-signers” of such agreements. Schwegmann Bros. v. Calvert Distillers Corp, 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035 (1951). Responding to that decision, Congress passed the McGuire Act Amendment to Section 5(a) of the Federal Trade Commission Act. The McGuire Act not only reaffirmed the policy of the Miller-Tydings Amendment, but also eliminated the restrictive effect of the Supreme Court’s decision in Schwegmann by permitting states to enact laws for the enforcement of fair trade contracts against non-signers. However, like the Miller-Tydings Amendment, it legalizes only vertical price maintenance contracts which are lawful in the state where the resale1 is made. Consequently, any analysis o*f The News’ resale price maintenance system must begin with an examination of the New York Fair Trade Law. The Feld-Crawford Act, as the New York Fair Trade Law is commonly referred to, was modeled after the Califor nia Fair Trade Act of 1933. Section 369-a permits vertical price fixing by authorizing the producer or owner of any brand-name commodity “which is in fair and open competition with commodities of the same general class” to fix by contract, a stipulated resale price and to require any dealer who may resell it to agree not to do so at other than the stipulated price. Section 369-b characterizes deviation from the agreement as unfair competition actionable by any person damaged, whether or not" }, { "docid": "23270368", "title": "", "text": "price competition by dictating the prices charged” by landlords. Id., at 103. “[S]uch vertical control destroys horizontal competition as effectively as if [landlords] ‘formed a combination and endeavored to establish the same restrictions ... by agreement with each other.’” Ibid. (quoting Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373, 408 (1911)). Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384 (1951), is also directly on point. In Schwegmann, a Louisiana statute authorized liquor distributors to enforce agreements fixing minimum retail prices on their products against retailers who had not agreed to the price restrictions. The Court held that the statutory scheme amounted to resale price maintenance, in violation of the Sherman Act. To paraphrase the Court in Schwegmann, “when [the city] compels [landlords] to follow a parallel price policy, it demands private conduct which the Sherman Act forbids.” Id., at 389. “[W]hen [landlords] are forced to abandon price competition, they are driven into a compact in violation of the spirit of the proviso which forbids ‘horizontal’ price fixing.” Ibid. (emphasis in original). B Even if I accepted the Court’s analysis of the antitrust preemption issue, I would find a functional “combination” in this case between the city of Berkeley and its officials, on the one hand, and the landlords on the other — a combination that operates to fix prices for rental units in Berkeley. To reach a contrary result, the Court simply states a conclusion — that “[a] restraint imposed unilaterally by government does not become concerted action within the meaning of the statute simply because it has a coercive effect upon parties who must obey the law.” Ante, at 267. The Court doesn’t explain why this is so — it simply baldly asserts that “[t]he ordinary relationship between the government and those who must obey its regulatory commands whether they wish to or not is not enough to establish a conspiracy.” Ibid. The best I can make of this is that the Court apparently would interpret the Sherman Act to forbid only privately arranged price-fixing schemes. See ante, at 267-269." }, { "docid": "23538937", "title": "", "text": "the resale price maintenance system. The court nevertheless concluded that the statute is a proper exercise of powers reserved to the State by the Twenty-first Amendment, because “the State interest in protecting retailers which underlies [the statute] is of sufficient magnitude to override the Federal policy expressed in the antitrust laws.” J. A. J. Liquor Store, Inc. v. New York State Liquor Authority, supra, at 522, 479 N. E. 2d, at 789. We noted probable jurisdiction, 475 U. S. 1080 (1986), and we now reverse. t — i In California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980), we invalidated a California statute requiring all producers, wholesalers, and rectifiers of wine to file fair trade contracts or price schedules with the State. Midcal establishes the framework for our analysis of New York’s liquor pricing system. A The “threshold question,” in this case as in Midcal, is whether the State’s pricing system is inconsistent with the antitrust laws. Id., at 102. Section 101-bb imposes a regime of resale price maintenance on all New York liquor retailers. Resale price maintenance has been a per se violation of § 1 of the Sherman Act “since the early years of national antitrust enforcement.” Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752, 761 (1984). See Dr. Miles Medical Co. v. John D. Park & Sons Co,, 220 U. S. 373, 404-409 (1911). Our recent decisions recognize the possibility that a vertical restraint imposed by a single manufacturer or whole saler may stimulate interbrand competition even as . it reduces intrabrand competition. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 51-52 (1977). Accordingly, we have held that concerted nonprice restrictions imposed by a single manufacturer are to be judged under the rule of reason. Id., at 59. We also have held that a single manufacturer may announce resale prices in advance and refuse to deal with those who fail to comply. Monsanto Co. v. Spray-Rite Service Corp., supra, at 761; United States v. Colgate & Co., 250 U. S. 300, 307 (1919). Neither of these" }, { "docid": "22932859", "title": "", "text": "antitrust laws simply because the state scheme might have an anticompetitive effect. See, e. g., New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U. S. 96, 110-111 (1978); Exxon Corp. v. Governor of Maryland, 437 U. S. 117, 129-134 (1978); Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U. S. 35, 45-46 (1966). A party may successfully enjoin the enforcement of a state statute only if the statute on its face irreconcilably conflicts with federal antitrust policy. In California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980), we examined a statute that required members of the California wine industry to file fair trade contracts or price schedules with the State, and provided that if a wine producer had not set prices through a fair trade contract, wholesalers must post a resale price schedule for that producer’s brands. We held that the statute facially conflicted with the Sherman Act because it mandated resale price maintenance, an activity that has long been regarded as a per se violation of the Sher man Act. Id., at 102-103; see Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373, 407-409 (1911). By contrast, in Joseph E. Seagram & Sons, Inc. v. Hostetter, supra, we rejected a facial attack upon § 9 of New York’s Alcoholic Beverage Control Law, which required retailers and wholesalers to file monthly price schedules with the State Liquor Authority accompanied by an affirmation that the prices charged were no higher than the lowest price at which sales were made anywhere in the United States during the preceding month. Id., at 39-40. The Court found no clear repugnancy between §9 and the federal antitrust laws: “The bare compilation, without more, of price information on sales to wholesalers and retailers to support the affirmations filed with the State Liquor Authority would not of itself violate the Sherman Act. Section 9 imposes no irresistible economic pressure on the appellants to violate the Sherman Act in order to comply with the requirements of § 9. On the contrary, §" } ]

[ { "docid": "22713803", "title": "", "text": "the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law,” and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process. Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect. As long ago as 1896, this Court declared the principle “that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government, or by the States, against any citizen because of his race.” And in Buchanan v. Warley, 245 U. S. 60, the Court held that a statute which limited the right of a property owner to convey his property to a person of another race was, as an unreasonable discrimination, a denial of due process of law. Although the Court has not assumed to define “liberty” with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause. In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Eederal Government. We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution. For the reasons set" } ]

[ { "docid": "14735754", "title": "", "text": "context of immigration policy”). III. Friend next argues that our interpretation of section 1993 violates the Equal Protection component of the Fifth Amendment because it impermissibly differentiates between the Philippines and other U.S. territories, such as Hawaii and Puerto Rico, which were considered part of the United States under section 1993. Friend claims that all U.S. territories were equally instilled with American values, and that, as a result, a parent’s residence in any of them should have fulfilled the goals of section 1993. We previously have stated that “ ‘judicial inquiry into immigration legislation is limited in deference to the long recognized power of the political branches ... to expel or exclude aliens.’ ” Viramontes-Alvarado, 149 F.3d at 916 (quoting Ablang, 52 F.3d at 804) (internal quotation omitted). As the court in Viramontes-Alvarado explained, “[i]n cases alleging constitutional infirmities in immigration laws, this court must determine if there is a ‘facially legitimate and bona fide reason’ for enacting a discriminatory rule.” Id. (quoting Ablang, 52 F.3d at 804). This inquiry is equivalent to the more traditional rational basis review used in many equal protection cases. See Ablang, 52 F.3d at 804. Importantly, “ ‘[w]here a statute is assessed pursuant to a deferential standard of review, it is constitutionally irrelevant whether the justification proffered by the government was in fact the reasoning that generated the legislative classification.’ ” Id. at 805 (quoting Wauchope v. United States Dep’t of State, 985 F.2d 1407, 1415 (9th Cir.1993)) (internal quotation omitted). The fact that the Philippines was destined for independence, whereas Hawaii and Puerto Rico were not, provides a rational basis for the exclusion of the Philippines from the term “United States” in section 1993. The Congress established in 1902 that the Constitution and laws of the United States would not apply in the Philippines, and it reaffirmed Philippine autonomy again in 1916. See Rabang, 35 F.3d at 1450-51. With the Philippine Independence Act in 1934, the separate destiny of the Philippines became clear beyond any doubt. See id. at 1451. Hawaii, in contrast, clearly was incorporated into the United States, and its inhabitants" }, { "docid": "7643340", "title": "", "text": "and the benefits it provides, review the administrative process for filing and adjudicating claims, and then discuss Plaintiffs’ claims. A When World War II started, the Philippines were in transition: The islands were still a United States territory, but they had the right to self-governance in preparation for independence. The United States had military bases in the Philippines and could call the archipelago’s armed forces into service. A few months after the surprise attack on Pearl Harbor, President Franklin Delano Roosevelt issued an executive order placing the Filipino military under the command of the United States Armed Forces of the Far East. As a result of this and similar initiatives, Filipino soldiers served alongside American troops in the Pacific Theater during World War II. After the War, Congress passed the First Supplemental Surplus Appropriation Rescission Act of 1946, Pub.L. No. 79-301, 60 Stat. 6, 14 (1946) (codified as amended at 38 U.S.C. § 107(a)), and the Second Supplemental Surplus Appropriation Rescission Act of 1946, Pub.L. No. 79-391, 60 Stat. 221, 223 (1946) (codified as amended at 38 U.S.C. § 107(b)). These acts transferred $200 million to the post-war Filipino military, but they disqualified certain Filipino fighters from receiving the same benefits enjoyed by active members of the United States Armed Forces. B More than sixty years later, in February 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (“the Act”), which established the FVEC. Pub.L. No. 111-5, § 1002,123 Stat. 115, 200-02 (2009). The FVEC aimed to recognize the contributions made by Filipino World War II veterans and granted one-time, lump-sum payments to each of those who qualified under the Act. See id. at § 1002(e). Section 1002(d) of the Act reads: (d) Eligible Persons. — An eligible person is any person who— (1) served— (A) before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military" }, { "docid": "22545426", "title": "", "text": "5.02 of the Election Code of Texas which provides, in part: “Notwithstanding any other provision of this section, any member of the Armed Forces of the United States or component branches thereof who is on active duty in the military service of the United States may vote only in the county in which he or she resided at the time of entering such service so long as he or she is a member of the Armed Forces. This restriction applies only to members of the Armed Forces who are on active duty, and the phrase ‘time of entering such service’ means the time of commencing the current active duty. A re-enlistment after a temporary separation from service upon termination of a prior enlistment shall not be construed to be the commencement of a new period of service, and in such case the county in which the person resided at the time of commencing active service under the prior enlistment shall be construed to be the county of residence at the time of entering service.” In Mabry v. Davis, 232 F. Supp. 930 (D. C. W. D. Texas 1964), a three-judge court recently declared this same provision unconstitutional as violating the Equal Protection Clause of the Fourteenth Amendment. 2 “The self-evident purpose of the amendment to the Constitution was to prevent a person entering military service as a resident citizen of a county in Texas from acquiring a different voting residence in Texas during the period of his military service, and to prevent a person entering military service as a resident citizen of another state from acquiring a voting residence in Texas during the period of military service.” 378 S. W. 2d 304, 305. (Emphasis supplied.) While many States have rules which prescribe special tests for qualifying military personnel for the vote, none goes so far as com pletely to foreclose from the franchise all servicemen who were nonresidents before induction. One other State, Nevada, has a provision which on its face seems as prohibitory as Art. VI, § 2, of the Texas Constitution. The Nevada Constitution provides that: “The right" }, { "docid": "16372761", "title": "", "text": "Vice Consul Ennis’s naturalization authority. Notice of the revocation did not reach him for several weeks, however, and Ennis continued to naturalize aliens until October 26, 1945. 68 Veterans, supra, 406 F.Supp. at 936. As succinctly stated in an internal INS memorandum, the revocation of the Vice Consul’s naturalization authority created “the rather anomalous situation that while we recognize in law the legal right of these persons to the benefits under the Act we have, from an administrative standpoint, made it impossible for such persons to acquire these benefits.” Shaughnessy Memorandum I, at 1. Several months after the Philippines lost its naturalization representative, Congress enacted a statute that appropriated funds for the Philippine Army and provided that service in that Army, pursuant to President Roosevelt’s 1941 order, was not to be deemed service in the United States armed forces. First Supplemental Surplus Appropriation Rescission Act of February 18, 1946, Pub.L. No. 79-301, 60 Stat. 14. The INS had previously concluded that service in the Philippine Army satisfied the section 701 naturalization requirement of active service in the United States armed forces. In response to this new piece of legislation, the INS reversed its earlier position and adopted the view that Filipinos inducted into the Commonwealth Army under the President’s military order were not eligible for naturalization under the 1940 Act because they had not served in the United States military. Memorandum to T. B. Shoemaker, Acting INS Commissioner, from L. Paul Winings, General Counsel, dated July 10,1946. This statute presumably did not affect the eligibility of Filipinos who individually joined the United States military subsequent to the “mass enrollment” provoked by the President’s order. See Memorandum to Ugo Carusi, INS Com missioner, from L. Paul Winings, General Counsel, dated February 5, 1945 (discussing eligibility of each group of servicemen prior to enactment of the appropriations statute). However, the INS’s interpretation of this provision greatly reduced the number of Filipino servicemen who could qualify for citizenship under sections 701-702. Government’s Brief at 8. The INS appointed a new naturalization representative for the Philippines, P. J. Phillips, who began processing petitions in" }, { "docid": "22834443", "title": "", "text": "in which a citizen may communicate with his Congressman. By limiting the scope of § 1034 to the particular case brought to the attention of Congress in 1951, the Court, I think, reads the legislative history as mistakenly as it reads the language of the statute itself. The Court’s opinion can be interpreted alternatively to hold that the regulations at issue do not constitute a “restrict[ion]” within the meaning of § 1034. That position also gives the statute an unjustifiably narrow scope. An absolute ban of petitions or petitioning activity on military bases would obviously constitute a “restrict[ion].” The regulations before us amount to such a ban, but with one difference. They permit a limited exception for petitions whose content has been precleared by command authority. This kind of exception, however, is precisely the type of “restrict[ion]” on the free flow of communication between servicemen and Congress that the law prohibits. As stated by the law’s sponsor, a requirement that a serviceman send his communications through channels “is a restriction in and of itself.” 97 Cong. Rec. 3776 (1951). That the preclearance regulations at issue here restrict the free flow of communication between servicemen and Members of Congress could not be more clearly demonstrated than by the facts presented in Secretary of Navy v. Huff, post, p. 453. There, servicemen invoked the preclearance procedures contained in similar regulations, but were denied permission to collect signatures on several petitions addressed to Members of Congress, which denials the Government now concedes were improper. Not only did the prescreening procedure unjustifiably prevent the circulation of those particular petitions; it also necessarily discouraged further collective and individual attempts by those servicemen to communicate with Congress. It seems clear to me that the application of the challenged regulations in this case violated the provisions of § 1034. Under that statute only those rules that prohibit “unlawful” communications or that are “necessary to the security of the United States” may be enforced. No claim is made here that the communicative content of any of the respondent's petitions was in any way “unlawful.” Moreover, no contention is" }, { "docid": "22678476", "title": "", "text": "Therefore, “[t]he exclusion from eligibility of [appellee] and his class would be justified if they do not suffer the same disruption in educational careers as do military veterans, and thus are not similarly situated with respect to the statute’s purpose. We believe . . . that the disruption is equal as between the two groups. Like military veterans, alternate servicemen have been exposed to the uncertainties caused by the draft law. They too were burdened at one time by an unsatisfied military obligation that adversely affected their employment potential; were forced, because of the draft law, to [forgo] immediately entering into vocational training or higher education; and were deprived, during the time they performed alternate service, of the opportunity to obtain educational objectives or pursue'more rewarding civilian goals.” Id., at 858-859. The error in this rationale is that it states too broadly the congressional objective reflected in (2), (3), and (4) of § 1651. The wording of those sections, in conjunction with the attendant legislative history, makes clear that Congress’ purpose in enacting the Veterans’ Readjustment Benefits Act of 1966 was not primarily to “eliminate the educational gaps between persons who served their country and those who did not,” but rather to compensate for the disruption that military service causes to civilian lives. In other words, the aim of the Act was to assist those who served on active duty in the Armed Forces to “readjust” to civilian life. Indeed, as the appellants argue, Brief for Appellants 20 n. 18, “the very name of the statute — the Veterans’ Readjustment Benefits Act — emphasizes congressional concern with the veteran’s need for assistance in readjusting to civilian life.” Of course, merely labeling the class of beneficiaries under the Act as those having served on active duty in the Armed Services cannot rationalize a statutory discrimination against conscientious objectors who have performed alternative civilian service, if, in fact, the lives of the latter were equally disrupted and equally in need of readjustment. See Richardson v. Belcher, 404 U. S. 78, 83 (1971). The District Court found that military veterans and alternative service" }, { "docid": "16372771", "title": "", "text": "INS authorized to naturalize members of the American armed forces pursuant to Section 702 of the Nationality Act of 1940 during all of the times those statutory rights were available denied petitioners due process of law.” 406 F.Supp. at 951. Category III petitioners were granted ninety days before their petitions would be dismissed to provide proof of service in the American armed forces. Judge Renfrew’s constitutional analysis began with the determination that these petitioners, although not citizens, were protected by the due process clause of the Fifth Amendment during the time that the INS representative was withdrawn from the Philippines. Upon reviewing the Philippine Independence Act and various definitions in the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(3), (22), (31), he concluded that Filipinos were nationals of the United States until July 4, 1946 when the country became fully independent. Furthermore, the Philippine Independence Act “evidence[d] an unmistakable Congressional intent to preserve for Filipinos basic civil rights.” Id. at 942. Judge Renfrew stated that while the petitioners were United States nationals, their constitutional rights were the same as those of noncitizen residents of the United States. Id. at 949-50. In his view, the government had to show a compelling interest to justify its decision to withdraw the naturalization officer from the Philippines because the action had discriminated against Filipinos, an inherently suspect class. Id. at 950. The court ruled that the government failed to carry this heavy burden. Although the Court has no doubt that the actions of the Commissioner of the INS were motivated by reasonable concern for the maintenance of amicable relations between the United States and the Philippine Islands, that concern alone, when considered in light of the suspect nature of the classification herein, and the strictness of the applicable constitutional standard, is insufficient justification for violating petitioners’ rights. Id. at 951. The government appealed the decision in 68 Veterans. However, the Department of Justice subsequently moved to dismiss the appeal on the basis of a recommendation by the Commissioner. On November 30, 1977, an order dismissing the Ninth Circuit appeal was entered. After the appeal" }, { "docid": "22043321", "title": "", "text": "labeling the legislative decision “military” on the one hand or “gender-based” on the other does not automatically guide a court to the correct constitutional result. No one could deny that under the test of Craig v. Boren, supra, the Government’s interest in raising and supporting armies is an “important governmental interest.” Congress and its Committees carefully considered and debated two alternative means of furthering that interest: the first was to register only males for potential conscription, and the other was to register both sexes. Congress chose the former alternative. When that decision is challenged on equal protection grounds, the question a court must decide is not which alternative it would have chosen, had it been the primary decision-maker, but whether that chosen by Congress denies equal protection of the laws. Nor can it be denied that the imposing number of cases from this Court previously cited suggest that judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged. As previously noted, supra, at 67, deference does not mean abdication. The reconciliation between the deference due Congress and our own constitutional responsibility is perhaps best instanced in Schlesinger v. Ballard, 419 U. S., at 510, where we stated: “This Court has recognized that fit is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.’ [U. S. ex rel.] Toth v. Quarles, 350 U. S. 11, 17. See also Orloff v. Willoughby, 345 U. S. 83, 94. The responsibility for determining how best our Armed Forces shall attend to that business rests with Congress, see U. S. Const., Art. I, § 8, cls. 12-14, and with the President. See U. S. Const., Art. II, § 2, cl. 1. We cannot say that, in exercising its broad constitutional power here, Congress has violated the Due Process Clause of the Fifth Amendment.” Or, as put a generation ago in a case not involving any claim of gender-based discrimination: “[JJudges are" }, { "docid": "15817071", "title": "", "text": "active military or naval service” for the purpose of obtaining Social Security benefits. The Social Security benefits to parents of World War II veterans contained in 42 U.S.C. § 417, were created in 1950 as part of the Social Security Act Amendments, 64 Stat. 477, 512. The term “World War II veteran” was defined to mean “any individual who served in the active military or naval service of the United States during World War II.” 42 U.S.C. § 417(d)(2). While the Philippine Army was placed in the active military service with the United States Army in 1941 by a Presidential Military Order, we think it is clear that the 1950 Social Security benefits were not intended to reach members of the Philippine Army. First, and most compelling, is the fact that in 1946 Congress appropriated $200,000,000 to the Philippine Army with the express proviso now codified in 38 U.S.C. § 107(a) that members of that army were to receive no benefit from any law of the United States which conferred “rights, privileges, or benefits” upon servicemen. Since the 1950 Social Security Act Amendments do not specifically abrogate the language of this proviso by expressly including members of the Philippine Army within the ambit of the Amendments, there is no reason not to give that proviso its clear effect. Second, the legislative history of the 1950 Amendments indicates that the section extending Social Security benefits to World War II veterans was intended to restore to servicemen who had been removed from the civilian work force the Social Security benefits of which they had been deprived because of their war service. S.Rep.No.1669, 81st Cong., 2d Sess. 18 (1950), U.S.Code Cong.Serv., p. 3287. However, this purpose does not apply to Philippine veterans, since they were not even covered by the Social Security Act during the war, and thus could not have been deprived of any benefits. Finally, appellant attacks the exclusion of Philippine servicemen from the Social Security benefits given the United States servicemen as unconstitutional. We find no merit in this argument. Congress clearly had a rational basis for excluding Philippine servicemen" }, { "docid": "14203469", "title": "", "text": "merits elaboration. We are not entirely clear as to the approach by which appellant would endeavor to make this point. At trial it apparently was that the lottery statutes do not cover certain activities which amount to lotteries. On the other hand, his position here seems to also embrace the claim that other persons violate the statute but are not prosecuted. Since we are uncertain in this regard, our discussion extends to both facets of the problem, which we considered in reaching our conclusions in this case. Appellant’s invocation of “equal protection of the law” is obviously a reference to the Equal Protection Clause of the Fourteenth Amendment, which effects a prohibition only on the states. And while the Fifth Amendment, applicable to the Federal Government, exacts due process of law, as the Fourteenth demands of the states, the text of the Fifth omits an explicit guaranty of equal protection. “But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive” and, while possibly they are not inexorably congruent, “discrimination may be so unjustifiable as to be violative of due process.” We think that it may safely be decided that in the sober relationship of the citizenry to the criminal laws, the Due Process Clause of the Fifth contains the same “pledge of the protection of equal laws” as is evident from the Fourteenth. At the same time, it is clear to us that dissimilar treatment which would withstand an assault predicated upon an alleged denial of equal protection under the Fourteenth would not offend due process under the Fifth. Within constitutional limits, legislative power to define crime is absolute, and even the command of equal protection leaves to the lawmaker much leeway to affect separate groups diver-gently “Equal protection does not require identity of treatment. It only requires that classification rest on real and not feigned differences, that the distinction have some relevance to the purpose for which the classification is made, and that the different treatments be not so disparate, relative to the difference in classification, as to" }, { "docid": "21504002", "title": "", "text": "combat area. 10 U.S.C. § 654(a)(ll). The conditions of service in such an area bring into play the animating concerns behind the Act, namely, maintaining the morale and unit cohesion that the military deems essential to an effective fighting force. See 10 U.S.C § 654(a)(12), (15). Accordingly, we have no choice but to dismiss the plaintiffs’ as-applied challenge. To be sure, deference to Congressional judgment in this area does not mean abdication. Rostker, 453 U.S. at 67, 101 S.Ct. 2646. But where Congress has articulated a substantial government interest for a law, and where the challenges in question implicate that interest, judicial intrusion is simply not warranted. See id. at 68, 101 S.Ct. 2646 (“[W]e must be particularly careful not to substitute our judgment of what is desirable for that of Congress, or our own evaluation of evidence for a reasonable evaluation by the Legislative Branch.”). B. Equal Protection In addition to their due process claim, the plaintiffs assert that the Act is unconstitutional under equal protection principles. Unlike the due process claim, which is premised on the constitutional protection afforded all citizens to engage in certain sexual conduct, the equal protection claim is based on the Act’s differential treatment of homosexual military members versus heterosexual military members. See generally Erwin Chemerinsky, Constitutional Law: Principles and Policies § 10.1.1 (2d Ed.2002) (explaining the difference between a due process and an equal protection challenge). The district court rejected this claim under rational basis review. Under equal protection jurisprudence, a governmental classification aimed at a “suspect class” is subject to heightened judicial scrutiny. See Mills v. State of Me., 118 F.3d 37, 46 (1st Cir.1997). Classifications that target non-suspect classes are subject only to rational basis review. Id. The plaintiffs contend that the district court erred by applying rational basis review because the Supreme Court’s decisions in Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), and Lawrence mandate a more demanding standard. In Romer, the Supreme Court invalidated, on equal protection grounds, a Colorado constitutional amendment which prohibited the enactment of any measure designed to protect individuals" }, { "docid": "16372839", "title": "", "text": "U.S. at 114, 96 S.Ct. at 1910. (CSC “performs a limited and specific function”). Accordingly, the court concludes that the decision made by the Commissioner and the Attorney General to revoke the Vice Consul’s naturalization authority was justified in light Of the express federal interest in responding to the concerns voiced by the Philippine government. Conclusion Upon concluding that the petitioner’s claim is neither a nonjusticiable political question nor barred by Hibi, statutory, or equitable limitations, the court has reviewed the merits of Olegario’s constitutional arguments. Olegario was entitled to claim the protections of the Due Process Clause at the time the naturalization examiner was withdrawn from the Philippines. In light of the statutory authority granted to the Commissioner and the Attorney General, and the existing state of foreign affairs, the executive’s action must not have clearly contravened Congress’s intent or mandate or have unconstitutionally discriminated against a particular class. The court holds that the withdrawal of the naturalization examiner was within the executive’s traditionally broad discretion in foreign affairs and did not exceed the authority granted to the Commissioner and the Attorney General to implement the Act. While this action did have an adverse impact on Filipino servicemen, it was justified by a sufficiently important federal interest to satisfy the appropriate constitutional standard. The decision of the district court is reversed. . The new provisions provided: Sec. 701. Notwithstanding the provisions of sections 303 and 326 of this Act, any person not a citizen, regardless of age, who has served or hereafter serves honorably in the military or naval forces of the United States during the present war and who, having been lawfully admitted to the United States, including its Territories and possessions, shall have been at the time of his enlistment or induction a resident thereof, may be naturalized upon compliance with all the requirements of the naturalization laws except that (1) no declaration of intention and no period of residence within the United States or any State shall be required; (2) the petition for naturalization may be filed in any court having naturalization jurisdiction regardless of the" }, { "docid": "22678483", "title": "", "text": "statutory classification also bears a rational relationship to objective (1) of § 1651, that of “enhancing and making more attractive service in the Armed Forces of the United States.” By providing educational benefits to all military veterans who serve on active duty Congress expressed its judgment that such benefits would make military service more attractive to enlistees and draftees alike. Appellee concedes, Brief for Appellee 28, that this objective is rationally promoted by providing educational benefits to those who enlist. But, appellee argues, there is no rational basis for extending educational benefits to draftees who serve in the military and not to draftees who perform civilian alternative service, since neither group is induced by educational benefits to enlist. Therefore, appellee concludes, the Act's classification scheme does not afford equal protection because it fails to treat equally persons similarly circumstanced. The two groups of draftees are, in fact, not similarly circumstanced. To be sure, a draftee, by definition, does not find educational benefits sufficient incentive to enlist. But, military service with educational benefits is obviously more attractive to a draftee than military service without educational benefits. Thus, the existence of educational benefits may help induce a registrant either to volunteer for the draft or not seek a lower Selective Service classification. Furthermore, once drafted, educational benefits may help make military service more palatable to a draftee and thus reduce a draftee's unwillingness to be a soldier. On the other hand, because a conscientious objector bases his refusal to serve in the Armed Forces upon deeply held religious beliefs, we will not assume that educational benefits will make military service more attractive to him. When, as in this case, the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute’s classification of beneficiaries and nonbeneficiaries is invidiously discriminatory. jjj Finally, appellee argues that the District Court erred in holding that “the challenged exclusion does not abridge [appellee’s] free exercise of his religion,” 352 F. Supp., at 860. He contends that the Act’s denial of benefits to alternative service conscientious" }, { "docid": "5553913", "title": "", "text": "the statute meets equal protection criteria with respect to each of the three groups. 1. Those Who Never Served Plaintiffs contend that, with respect to applicants who have not served in the armed forces, the statute creates an “arbitrary and irrational classification that denies them equal protection of the law.” A number of courts, however, have considered and rejected equal protection challenges to military preference in civil service hiring and promotion. Koelfgen v. Jackson, 355 F.Supp. 243 (D.Minn.1972), ait’d mem., 410 U.S. 976, 93 S.Ct. 1502, 36 L.Ed.2d 173 (1973); Rios v. Diliman, 499 F.2d 329 (5th Cir. 1974); Feinerman v. Jones, 356 F.Supp. 252 (M.D.Pa.1973). These and other cases hold that veterans preferences need meet only the minimum rational basis standard, since public employment is not a fundamental right in the “equal protection” sense and since a statute awarding benefits based on veterans status does not involve a suspect classification. Veterans preferences in civil service hiring and promotion have been upheld, therefore, on the grounds that they promote the state’s interest in rewarding those who have served their country, aid the transition from military to civilian life, and provide incentives to serve in the armed forces. Some courts have even concluded that a state may rationally assume that those who served in the military have acquired training and experience which will make them better civil servants. See Feinerman v. Jones, supra. While this latter ground may be debatable, the other three are clearly valid and are sufficient to sustain the statute in question from an equal protection challenge by those who have never served. 2. Those Who Served But Not During The Specified Periods Plaintiffs argue that the statutory distinction between service during the time of recognized war (whether declared or not) and service during time of so-called “peace” is irrational and arbitrary and, therefore, violative of the fourteenth amendment since no appropriate governmental interest is suitably furthered by the differential treatment. Again applying the rational basis test, we conclude that the statute meets constitutional requirements. The statute provides that preference points be awarded for service “at any time" }, { "docid": "16372764", "title": "", "text": "1945. The petitioner remained eligible for naturalization under the 1940 Act until December 2,1945 when his service in the Philippine Army ended. Therefore, for about five weeks from October 26th to December 2d, Olegario apparently qualified for United States citizenship, but no INS representative was present in the Philippines to accept his petition. Olegario concedes that he neither filed a timely naturalization petition nor made any attempt to do so. He contends, however, that his constitutional rights were violated by “the arbitrary action of the Commissioner . . ., with the approval of the Attorney General, which resulted in the removal of the Vice Consul from the Philippines during 1945-46 . . . and precluded petitioner, and Filipino servicemen similarly situated, from exercising the opportunity to become naturalized pursuant to Sections 701-702 of the [Act].” Brief of Petitioner-Appellee (“Petitioner’s Brief”), at 25. The district court agreed with this contention and, reversing a decision rendered by an INS naturalization examiner, granted Olegario’s naturalization petition. Relying on Judge Renfrew’s comprehensive opinion in the 68 Veterans case, supra, Judge Knapp concluded that the petitioner “had been denied due process of law in a manner which could only be remedied by now admitting [him] to citizenship.” While recognizing the import of Judge Renfrew’s discussion, and the substantial arguments made by the petitioner and amicus on appeal, we are constrained to disagree with that result. Several preliminary issues and arguments must be addressed before the constitutional question presented by this appeal can be fully examined. These issues, in turn, require some further background discussion of legislative history and prior cases involving Filipino veterans seeking United States citizenship. Statutory and Case Law Background In 1952, Congress enacted a new Immigration and Nationality Act that appeared to extinguish some of the naturalization rights granted to alien servicemen under the 1940 Act. Immigration and Nationality Act of 1952, 66 Stat. 242, codified at 8 U.S.C. §§ 1427 et seq. (“1952 Act”). Specifically, the 1952 Act required that the applicant had either enlisted in the military while located in a qualifying geographic area that did not include the Philippines," }, { "docid": "16372822", "title": "", "text": "considered permitting a soldier in the United States Army to be naturalized if he had never been lawfully admitted to this country. Id. (Remarks of Senator Saltonstall). Senator Russell answered that citizenship would not be granted under those circumstances and that the amendment under consideration would not affect such a case. He then stated: We did have a special law in the case of natives of the Philippines who went into the armed forces of the Philippines National Army. They were allowed citizenship in the United States, but that privilege has since been terminated by law. Id. It is unclear what law the Senator is describing. He may have been referring to an entirely different provision or it is possible that he misunderstood or mischaracterized the present state of affairs. The 1940 Act required that the applicant had been lawfully admitted to the United States, its territories or possessions and had served in the United States armed forces. Under the INS rulings in effect at the time, the Philippines were included in that geographical area, and service in the Commonwealth Army or Philippine Scouts were deemed to satisfy the military service requirement. See Cox Memorandum, supra; Winings Memorandum, supra. The court does not read Senator’s Russell’s remarks as indicating that he was aware of or approved the decision to withdraw the naturalization examiner from the Philippines. It is significant, however, that in December 1945 the Chairman of the Senate Committee on Immigration apparently acknowledged that Filipino servicemen could not apply for citizenship without coming to the United States. This statement was not questioned, and no disapproval of the law as described was expressed. In sum, we conclude that the executive’s authority to implement the 1940 Act included the right to exercise discretion in the face of a potential diplomatic conflict. The decision to withdraw all naturalization authority from the Philippine Islands for a nine month period was not a manifest abuse of that discretion. Nor do Congress’s subsequent legislative actions illustrate, an intent clearly inconsistent with that decision. 2. Equal Protection Olegario argues that the executive action challenged here should" }, { "docid": "7643339", "title": "", "text": "OPINION GOULD, Circuit Judge: This case involves a group of Filipino World War II veterans and their widows who did not receive payments under the Filipino Veterans Equity Compensation Fund (“FVEC”), a fund established by statute in 2009 to give a one-time payment to each qualifying service member. These veterans and their widows either: (1) were ineligible for benefits under the statute; or (2) qualified for benefits, but were denied them because the Department of Veterans Affairs (‘VA”) could not verify military service. Plaintiffs contend that their Fifth Amendment rights to due process and equal protection were violated by the statute establishing the fund and by the VA’s administration of it, resulting in their lack of payment. The district court dismissed Plaintiffs’ claims with prejudice on the pleadings for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted. We consider whether the district court’s dismissal was correct. I To place this appeal in context, we start with a refresher on World War II history, explain the FVEC and the benefits it provides, review the administrative process for filing and adjudicating claims, and then discuss Plaintiffs’ claims. A When World War II started, the Philippines were in transition: The islands were still a United States territory, but they had the right to self-governance in preparation for independence. The United States had military bases in the Philippines and could call the archipelago’s armed forces into service. A few months after the surprise attack on Pearl Harbor, President Franklin Delano Roosevelt issued an executive order placing the Filipino military under the command of the United States Armed Forces of the Far East. As a result of this and similar initiatives, Filipino soldiers served alongside American troops in the Pacific Theater during World War II. After the War, Congress passed the First Supplemental Surplus Appropriation Rescission Act of 1946, Pub.L. No. 79-301, 60 Stat. 6, 14 (1946) (codified as amended at 38 U.S.C. § 107(a)), and the Second Supplemental Surplus Appropriation Rescission Act of 1946, Pub.L. No. 79-391, 60 Stat. 221, 223 (1946) (codified as amended" }, { "docid": "22043320", "title": "", "text": "women bears a rational relation to some legitimate Government purpose, see U. S. Railroad Retirement Bd. v. Fritz, 449 U. S. 166 (1980), and should not examine the Act under the heightened scrutiny with which we have approached gender-based discrimination, see Michael M. v. Superior Court of Sonoma County, 450 U. S. 464 (1981); Craig v. Boren, 429 U. S. 190 (1976); Reed v. Reed, supra. We do not think that the substantive guarantee of due process or certainty in the law will be advanced by any further “refinement” in the applicable tests as suggested by the Government. Announced degrees of “deference” to legislative judgments, just as levels of “scrutiny” which this Court announces that it applies to particular classifications made by a legislative body, may all too readily become facile abstractions used to justify a result. In this case the courts are called upon to decide whether Congress, acting under an explicit constitutional grant of authority, has by that action transgressed an explicit guarantee of individual rights which limits the authority so conferred. Simply labeling the legislative decision “military” on the one hand or “gender-based” on the other does not automatically guide a court to the correct constitutional result. No one could deny that under the test of Craig v. Boren, supra, the Government’s interest in raising and supporting armies is an “important governmental interest.” Congress and its Committees carefully considered and debated two alternative means of furthering that interest: the first was to register only males for potential conscription, and the other was to register both sexes. Congress chose the former alternative. When that decision is challenged on equal protection grounds, the question a court must decide is not which alternative it would have chosen, had it been the primary decision-maker, but whether that chosen by Congress denies equal protection of the laws. Nor can it be denied that the imposing number of cases from this Court previously cited suggest that judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules" }, { "docid": "22043394", "title": "", "text": "not be assigned to vessels or aircraft engaged in combat missions. See 10 U. S. C. § 6015 (1976 ed., Supp III), §8549. Although there are no statutory restrictions on the assignment of women to combat in the Army and the Marine Corps, both services have established policies that preclude such assignment. Appellees do not concede the constitutional validity of these restrictions on women in combat, but they have taken the position that their validity is irrelevant for purposes of this case. I join the Court, see ante, at 69, in rejecting the Solicitor General’s suggestion that the gender-based classification employed by the MSSA should be scrutinized under the \"rational relationship” test used in reviewing challenges to certain types of social and economic legislation. See, e. g., Schweiker v. Wilson, 450 U. S. 221 (1981); U. S. Railroad Retirement Bd. v. Fritz, 449 U. S. 166 (1980). Consequently, it is of no moment that the constitutional challenge in this case is pressed by men who claim that the MSSA’s gender classification discriminates against them. The Constitution grants Congress the power “To raise and support Armies,” “To Provide and maintain a Navy,” and “To make Rules for the Government and Regulation of the land and naval Forces.” U. S. Const., Art. I, § 8, cls. 12-14. Although the Fifth Amendment contains no Equal Protection Clause, this Court has held that “the Fifth Amendment’s Due Process Clause prohibits the Federal Government from engaging in discrimination that is ‘so unjustifiable as to be violative of due process.’ ” Schlesinger v. Ballard, 419 U. S. 498, 500, n. 3 (1975), quoting Bolling v. Sharpe, 347 U. S. 497, 499 (1954). With the repeal in 1967 of a statute limiting the number of female members of the Armed Forces to 2% of total enlisted strength, the number of women in the military has risen steadily both in absolute terms and as a percentage of total active military personnel. The percentage has risen from 0.78% in 1966, to over 5% in 1976, and is expected to rise to 12% by 1985. See U. S. Dept. of" }, { "docid": "21504003", "title": "", "text": "premised on the constitutional protection afforded all citizens to engage in certain sexual conduct, the equal protection claim is based on the Act’s differential treatment of homosexual military members versus heterosexual military members. See generally Erwin Chemerinsky, Constitutional Law: Principles and Policies § 10.1.1 (2d Ed.2002) (explaining the difference between a due process and an equal protection challenge). The district court rejected this claim under rational basis review. Under equal protection jurisprudence, a governmental classification aimed at a “suspect class” is subject to heightened judicial scrutiny. See Mills v. State of Me., 118 F.3d 37, 46 (1st Cir.1997). Classifications that target non-suspect classes are subject only to rational basis review. Id. The plaintiffs contend that the district court erred by applying rational basis review because the Supreme Court’s decisions in Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), and Lawrence mandate a more demanding standard. In Romer, the Supreme Court invalidated, on equal protection grounds, a Colorado constitutional amendment which prohibited the enactment of any measure designed to protect individuals due to their sexual orientation. The Court analyzed the constitutionality of the amendment through the prism of rational basis, asking whether the classification bore “a rational relation to some legitimate end.” Id. at 631, 116 S.Ct. 1620. Applying this standard, the Court concluded that the amendment was unconstitutional because the only possible justification for the amendment was “animosity toward the class of persons affected,” which does not constitute even “a legitimate governmental interest.” Id. at 634-35, 116 S.Ct. 1620. Romer, by its own terms, applied rational basis review. The ground for decision was the notion that where “a law is challenged as a denial of equal protection, and all that the government can come up with in defense of the law is that the people who are hurt by it happen to be irrationally hated or irrationally feared, ... it is difficult to argue that the law is rational if ‘rational’ in this setting is to mean anything more than democratic preference.” Milner v. Apfel, 148 F.3d 812, 817 (7th Cir.1998) (Posner, J.). Romer nowhere" } ]

[ { "docid": "22617481", "title": "", "text": "738. In Holt v. United States, 218 U. S. 245, this Court had to decide whether an indictment should be quashed because supported in part by incompetent evidence. Aside from the incompetent evidence “there was very little evidence against the accused.” The Court refused to hold that such an indictment should be quashed, pointing out that “The abuses of criminal practice would be enhanced if indictments could be upset on such a ground.” 218 U. S., at 248. The same thing is true where as here all the evidence before the grand jury was in the nature of “hearsay.” If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more. Petitioner urges that this Court should exercise its power to supervise the administration of justice in fed eral courts and establish a rule permitting defendants to challenge indictments on the ground that they are not supported by adequate or competent evidence. No persuasive reasons are advanced for establishing such a rule. It would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules. Neither justice nor the concept of a fair trial requires such a change. In a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring about a fair verdict. Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair" } ]

[ { "docid": "23292877", "title": "", "text": "259 F.Supp. 942 (S.D.N.Y.1968). Nor does a prospective defendant presently have the right to cross-examine witnesses before the grand jury. In general, an indictment is not defective because the defendant did not have an opportunity to present his version of the facts before the grand jury. As Justice Black stated in Costello v. United States, supra, 350 U.S. at 363, 76 S.Ct. at 408: “If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an ’ information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.” [Footnote omitted] 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397. On the other hand, the prosecutor’s right to exercise some discretion and selectivity in the presentation of evidence to a grand jury does not entitle him to mislead it or to engage in fundamentally unfair tactics before it. The prosecutor, for instance, may not obtain an indictment on the basis of evidence known to him to be perjurious, United States v. Basurto, 497 F.2d 781, 785-86 (9th Cir. 1974), or by leading it to believe that it has received eyewitness rather than hearsay testimony, United States v. Estepa, 471 F.2d 1132, 1136-37 (2d Cir. 1972). We would add that where a prosecutor is aware of any substantial evidence negating guilt he should, in the interest of justice, make it known to the grand jury, at least where it might reasonably be expected to lead the jury not to indict. See ABA Project on Standards for Criminal Justice — The Prosecution Function, § 3.6, pp. 90-91. Examining" }, { "docid": "22309096", "title": "", "text": "the grand jury was in the nature of ‘hearsay.’ If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more. “Petitioner urges that this Court should exercise its power to supervise the administration of justice in federal courts and establish a rule permitting defendants to challenge indictments on the ground that they are not supported by adequate or competent evidence. No persuasive reasons are advanced for establishing such a rule. It would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules. Neither justice nor the concept of a fair trial requires such a change. In a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring about a fair verdict. Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair trial.” [Footnote omitted.] Costello v. United States, 350 U.S. at 363-364, 76 S.Ct. at 408-09. After the passage of still another twenty years, the problem faced the Court of Appeals for the Sixth Circuit in a case remarkably similar to the instant case. United States v. Ruyle, 524 F.2d 1133 (6th Cir. 1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1664, 48 L.Ed.2d 175 (1976). In this case an accused was charged with unlawful distribution of a controlled substance. A narcotics agent testified before the grand jury as to the details" }, { "docid": "7609891", "title": "", "text": "561 (1974), quoting Branzburg v. Hayes, 408 U.S. 665, 701, 92 S.Ct. 2646, 2666, 33 L.Ed.2d 626 (1972). In support of this function, the Supreme Court has recognized that: The grand jury’s sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered. Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inade quate or incompetent evidence ... Calandra, 414 U.S. at 344-45, 94 S.Ct. at 618 (emphasis added). Further, the grand jury proceedings are not adversary in nature, but rather consist of inquiries conducted by laymen unfettered by technical rules of trial procedure. Costello v. United States, 350 U.S. 359, 364, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956). In rejecting a challenge to an indictment on the ground it was based on hearsay evidence, Justice Black wrote for the Court: If indictments are to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more. Costello, 350 U.S. at 363, 76 S.Ct. at 408-409. Based on these principles, the Sixth Circuit has held that when an indictment is valid on its face “the defendant [is] not entitled to challenge it on the ground that information which he considered favorable to his defense was not presented to the grand jury.” United States v. Ruyle, 524 F.2d 1133, 1136 (6th Cir.1975). In United States v. Kennedy, 564 F.2d 1329, 1337-38 (9th Cir.1977)," }, { "docid": "5869216", "title": "", "text": "motion to dismiss an indictment on the ground that it was procured by fraud through the perjured testimony of one witness. In affirming, the court of appeals stated, “It is enough . . . that there is some competent evidence to sustain the charge issued by the Grand Jury even though other evidence before it is incompetent or irrelevant in an evidentiary sense or even false.” 311 F.2d at 132 (emphasis in original). As we have noted, the government conceded that the indictment in Tane should be dismissed. The dicta in Tane and the use of the word “some” in both opinions support the conclusion that an indictment based on no evidence should be dismissed. However, the Supreme Court has never formulated such a rule. The leading case on the evidentiary requirements for a valid indictment is Costello v. United States, 350 U.S. 359, 76 S.Ct. 406,100 L.Ed. 397 (1956). Costello held that a defendant in a criminal case is not entitled to have an indictment quashed on the ground that all the evidence presented to the grand jury was hearsay. After reviewing the history and function of grand juries, Justice Black wrote for the Court: If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more. 350 U.S. at 363, 76 S.Ct. at 408 (footnote omitted). In two subsequent cases the Supreme Court repeated its Costello language. In Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958), the" }, { "docid": "22309095", "title": "", "text": "considered along with the rest. The abuses of criminal practice would be enhanced if indictments could be upset on such a ground.” [Citations omitted.] [Emphasis supplied.] Holt v. United States, supra, 218 U.S. at 247-248, 31 S.Ct. at 4. Forty-six years later the Supreme Court citing Holt, supra, rejected an invitation to exercise the power of supervision over the administration of justice in the federal courts by adopting a rule permitting defendants to challenge indictments on the ground that they are not supported by adequate or competent evidence. Costello v. United States, supra. While the thrust of the Opinion was to authorize the use of hearsay evidence as a sole basis for indictment by a grand jury, the fact that the Court relied on Holt causes the language of the Court to be most helpful here. We are instructed on the guidelines to be considered where the indictment is sought to be brought under attack. The Court having reviewed the Holt holding, said: “The same thing is true where as here all the evidence before the grand jury was in the nature of ‘hearsay.’ If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more. “Petitioner urges that this Court should exercise its power to supervise the administration of justice in federal courts and establish a rule permitting defendants to challenge indictments on the ground that they are not supported by adequate or competent evidence. No persuasive reasons are advanced for establishing such a" }, { "docid": "1404684", "title": "", "text": "witness who appeared before the Grand Jury was a Government agent who had no personal knowledge of the facts, that his testimony was based upon hearsay and hence incompetent. The Supreme Court of the United States has considered the question and given an answer adverse to appellant’s contention. In the causa célebre of Frank Costello a conviction was had of income tax evasion upon proof of increases of net worth. The only witnesses before the Grand Jury which returned the indictment were Government agents who had no first-hand knowledge. The Supreme Court, in an opinion rendered March 5, 1956, held the indictment valid and said: “In Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 4, 54 L.Ed. 1021, this Court had to decide whether an indictment should be quashed because supported in part by incompetent evidence. Aside from the incompetent evidence ‘there was very-little evidence against the accúsed.' The Court refused to hold that such an indictment should be quashed, pointing out that ‘The abuses of criminal practice would be enhanced if indictments could be upset on such a ground.’ 218 U.S. at page 248, 31 S.Ct. at page 4. The same thing is true where as here all the evidence before the grand jury was in the nature of ‘hearsay.’ If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits» The Fifth Amendment requires nothing more. “Petitioner urges that this Court should exercise its power to supervise the administration of justice in-federal courts and establish a" }, { "docid": "12596386", "title": "", "text": "dismiss the indictment on the ground that the indictment was obtained solely by way of hearsay testimony. That motion was denied. When the trial on the merits had been completed, appellant renewed his motion to dismiss, which motion was likewise denied. The record shows that at the time the government agent testified before the Grand Jury, both Lee and Doty were in custody and had given statements admitting their participation in the crime. These statements clearly implicated the appellant. The agent summarized before the Grand Jury the confessions of Lee and Doty. The government did not produce the statement of Lee in which Lee implied that Jack had not participated in the robbery, nor did any of the other witnesses who testified for the government at the trial testify before the Grand Jury. The appellant contends that such a procedure does not allow the Grand Jury to exercise fully its judgment in bringing an indictment, and that it denies to the defendant the opportunity to impeach witness’ trial testimony with their pre-trial statements. There is no merit to appellant’s contention that the indictment should be set aside because it was based solely upon hearsay testimony. In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), the Supreme Court held that a defendant may be required to stand trial and a conviction may be sustained where only hearsay evidence is presented to the Grand Jury which indicted him. The Court stated in Costello, “Neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act. * * * If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed.” This court has made similar rulings in two recent cases. Johnson v. United States of America, 404 F.2d 1069 decided December 27, 1968, and Wood v. United States of America, 405 F.2d 423 decided December 30, 1968. Furthermore, there is no requirement that Grand Jury proceedings be recorded or transcribed." }, { "docid": "1404685", "title": "", "text": "could be upset on such a ground.’ 218 U.S. at page 248, 31 S.Ct. at page 4. The same thing is true where as here all the evidence before the grand jury was in the nature of ‘hearsay.’ If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits» The Fifth Amendment requires nothing more. “Petitioner urges that this Court should exercise its power to supervise the administration of justice in-federal courts and establish a rule permitting defendants to challenge-indictments on the ground that they are not supported by adequate or competent evidence. No persuasive-reasons are advanced for establishing such a rule. It would run counter to the whole history of the grand1 jury institution, in which laymen conduct their inquiries unfettered by technical rules. Neither justice nor the concept of a fair trial requires-such a change. In a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring about a fair verdict. Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair trial.” Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 408, 100 L.Ed.-. The appellant also contends that, because the only witness before the-Grand Jury did not compute taxes there-could not have been any evidence before the Grand Jury from which an indictment could have been found as to the-amount of tax, if any, due by appellant. To this there are two answers; first,, there" }, { "docid": "22963016", "title": "", "text": "before the grand jury in support of the conspiracy charge, 671 F.2d 178, was reversed. As the Supreme Court explained in Costello, 350 U.S. at 363, 76 S.Ct. at 408-409 (1956); If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more. (footnote omitted). This language from Costello can only be read to hold that a grand jury presented with inadequate or incompetent evidence may nevertheless be an unbiased grand jury capable of returning a valid indictment. Appellants’ claims that the prosecutor presented to the grand jury evidence which appellants consider inadequate or incompetent, thereby creating a biased grand jury, cannot be reconciled with the Supreme Court’s holding. Thus, appellants’ attacks on the validity of the indictment, and the trial court’s refusal to dismiss the same, must fail. 2. Allegations of Perjury and Prosecutorial Misconduct We think, however, that appellants’ contentions regarding the government’s use of the Yoss ledger book before the grand jury merit a more extensive examination. Those contentions may properly be construed to be a claim that the use of the ledger book was tantamount to the use of perjured testimony since two entries in the ledger were shown by government laboratory testing conducted after the indictment was returned to have been made with ink which was first manufactured after the date of the purported entries. The Ninth Circuit has held in United States v. Basurto, 497 F.2d 781, 785-86 (9th Cir.1974), that the Due Process Clause of the Fifth Amendment" }, { "docid": "21321033", "title": "", "text": "irregular on its face, or was not returned by a legally constituted Grand Jury, or that there were other irregularities in the Grand Jury proceedings. His sole contention is that there was no competent evidence before the Grand Jury. The well-established rule is that an indictment, regular on its face, returned by a legally constituted and unbiased Grand Jury is presumed to be founded on competent evidence. A heavy burden is placed upon one who seeks to overcome such salutary presumption. Appellant’s showing is clearly insufficient to do so. The Supreme Court, in Costello v. United States, 350 U.S. 359, at 363, 76 S.Ct. 406 at 408, 100 L.Ed. 397 (1956), referred to its earlier opinion in Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 where the indictment was supported, in part, by incompetent evidence and yet held valid. The Court stated: “The same thing is true where as here all the evidence before the grand jury was in the nature of ‘hearsay’. If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.” Appellant’s need for the minutes of the Grand Jury was to show, if he could, that no witness appeared before the Grand Jury. In the alternate motion appellant did not set forth any other particularized and compelling need for the production of the minutes of the Grand Jury, e. g., the need of the Grand Jury transcript at the trial for purposes of cross examination," }, { "docid": "8111943", "title": "", "text": "defendants’ right to an unbiased grand jury or seriously impaired their defense on the merits. See United States v. Thomas, 593 F.2d 615, 623 (5th Cir. 1979); United States v. Abrahams, 466 F.Supp. 552, 558 (D.Mass.1978). III. Abuse of the Grand Jury Process A. Costello and Its Progeny The reluctance of federal courts to examine the evidentiary basis of a grand jury indictment is founded upon the Supreme Court’s decision in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). The issue in Costello was whether “a defendant [could] be required to stand trial and a conviction be sustained where only hearsay evidence was presented to the grand jury which indicted him?” 350 U.S. at 359, 76 S.Ct. at 406. In affirming Costello’s conviction for a unanimous Court, Justice Black set forth the guiding principle concerning judicial examination of grand jury indictments: “If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.” 350 U.S. at 363, 76 S.Ct. at 408. Although the holding of Costello is limited to indictments based exclusively on hearsay, the Supreme Court in subsequent cases has applied the policies of that decision to bar virtually all attacks premised upon the quality or competency of grand jury evidence. In United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966), the Court reversed the district court’s dismissal of an indictment for tax evasion holding: “Even if we assume that the Government did" }, { "docid": "864029", "title": "", "text": "where only hearsay evidence was presented to the grand jury which indicted him?” The Court went on to answer the question in the affirmative: ... If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on the face, is enough to call for trial of the charge of the merits. The Fifth Amendment requires nothing more.. .. See also United States v. Hubbard, 603 F.2d 137 (10th Cir. 1979); United States v. Herbst, 565 F.2d 638 (10th Cir. 1977). Thus, appellants’ first argument is without merit. Appellants would have this Court adopt the analysis in United States v. Estepa, 471 F.2d 1132 (2nd Cir. 1972), requiring the dismissal of an indictment based on hearsay evidence in certain circumstances. Costello, supra, is still valid law and has been reaffirmed by the Supreme Court in Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966); and in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). There is nothing in the record to indicate that the government intentionally misled or deceived the Grand Jury. The court in Estepa made it clear that intentional deception was the basis for the dismissal of the indictment. Furthermore, courts have universally refused to quash indictments based on the argument that the evidence before the grand jury was hearsay. United States v. Hubbard, supra. The indictment returned against defendants charged them with a firearms violation which obviously has no relationship to narcotics. Although the subject of narcotics was" }, { "docid": "15765377", "title": "", "text": "omitted.) (Emphasis supplied.) Appellant, citing exclusively to Estepa, supra, and similar decisions from the Court of Appeals, Second Circuit, concedes, however, that there are two distinct lines of cases developed over the years on the issue whether indictments should be dismissed on the basis of hearsay testimony. [Brief of Appellant, p. 6.] The Estepa court exercised its discretionary power in dismissing the indictment even though no timely motion to quash was presented before the trial court and even though the issue was presented for the first time on appeal. We have already observed that this action was apparently anchored to the court’s determination that the Government had intentionally misled and/or deceived the grand jury as to the nature of the testimony. In the case at bar, there is nothing in the record (or the Brief of Appellant for that matter) which indicates that the Government misled or deceived the Grand Jury. In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), the Supreme Court, after tracing the historical significance of the grand jury system, stated, inter alia: If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more. 350 U.S., at p. 363, 76 S.Ct. at p. 408. The Costello holding has been reaffirmed by the Supreme Court in Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958), United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966) and, more" }, { "docid": "19681339", "title": "", "text": "confine its deliberations to competent or otherwise legally obtainable evidence. This approach was largely rejected by the Supreme Court in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). In Costello the defendant moved to dismiss the indictment on the ground that the only witnesses to appear before the grand jury were three government investigators who had no first hand knowledge of the acts of tax evasion with which defendant was charged and who were only able to repeat the hearsay declarations of others. Costello argued that an indictment based solely on hearsay violated the Fifth Amendment grand jury provision. The Court based its analysis primarily on the practices of the early English grand jury. “The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge and were free to make their presentments or indictments on such information as they deemed satisfactory.” 350 U.S. at 362, 76 S.Ct. at 408. The Court concluded that: “If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.” 350 U.S. at 363, 76 S.Ct. at 408-409. Fairly read, Costello may be said to stand for the proposition that the validity of an indictment under the Fifth" }, { "docid": "584274", "title": "", "text": "grand jury proceedings on which it was based: “[Njeither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act.... If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.” Costello, 350 U.S. at 362-63, 76 S.Ct. at 408 (footnote omitted). The Supreme Court refused to invoke its supervisory powers, because to permit indictments to be challenged for lack of adequate or competent evidence “would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules.” Id. at 364, 76 S.Ct. at 409. In light of Costello, it is not surprising to find that this Circuit has declared that the “validity of an indictment is not affected by the type of evidence presented to the grand jury, even though that evidence may be incompetent, inadequate or hearsay.” United States v. Markey, 693 F.2d 594, 596 (6th Cir.1982). We held the challenge to the validity of the indictment in Markey to be “without merit,” even though the FBI agent’s testimony before the grand jury was arguably “slim and vague” because the agent had failed to bring his investigatory file to the hearing. Markey, 693 F.2d at 596. In United States v. Short, 671 F.2d 178 (6th Cir.), cert. denied, 457 U.S. 1119, 102 S.Ct. 2932, 73 L.Ed.2d 1332 (1982), we did not hesitate to reverse where the district court had examined the entire grand jury record" }, { "docid": "7701978", "title": "", "text": "neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act. * * * There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. * * * And in 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. As late as 1927 an English historian could say that English grand juries were still free to act on their own knowledge if they pleased to do so. «• * * “In Holt v. United States, [31 S.Ct. 2, 54 L.Ed. 1021], this Court had to decide whether an indictment should be quashed because supported in part by incompetent evidence. Aside from the incompetent evidence ‘there was very little evidence against the accused.’ The Court refused to hold that such an indictment should be quashed, pointing out that ‘The abuses of criminal practice would be enhanced if indictments could be upset on such a ground.’ 218 U.S., at 248 [31 S.Ct. at 4]. The same thing is true where as here all the evidence before the grand jury was in the nature of ‘hearsay.’ If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, [7] like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more. “Petitioner urges that this Court should exercise its power" }, { "docid": "16362278", "title": "", "text": "the government offered no objection, for dismissal of the conspiracy count. He was then tried by the court without a jury and found guilty on the remaining substantive counts which had nothing to do with his speech. I. Johnson contends that the counts of the indictment on which he was convicted are invalid because the grand jury that returned them heard evidence concerning his Congressional speech. Johnson’s argument, however, is foreclosed by authorities that we deem controlling. In Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956), Mr. Justice Black wrote: “If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.” Johnson seizes on the term “unbiased grand jury” in CosteUo, and argues that the grand jury which indicted him was biased because it heard testimony of his Congressional speech. Bias of a grand jury may be manifested in several ways, but it has not been held to arise from the receipt of incompetent or constitutionally impermissible evidence. Costello dealt with an indictment founded on hearsay evidence, but the rule it states is applicable to sustain an indictment returned by a grand jury that heard evidence obtained in violation of the Constitution. Of course, the tainted evidence would not be admissible in the trial of the case, but this presents no problem here. The count of the indictment that dealt with the speech was dismissed, and the speech played no part in the proof of the" }, { "docid": "864028", "title": "", "text": "money for the machine gun and Pappageorge informed Giliotti that he had indeed received the money. Additional testimony established that the weapon was operable in a fully automatic mode, that it was not registered to any of the three defendants and that the machine gun did not have a serial number. Several issues are raised by appellants in this appeal: I. Initially, appellants raise the issue of irregularity in the Grand Jury proceedings prior to the issuance of the indictment against defendants. Specifically, appellants claim that the indictment is based strictly on hearsay and that improper comments relating to narcotics transactions were made by Agent Cochran who was the only Grand Jury witness. The Grand Jury proceedings consisted of approximately nine minutes of testimony by Agent Cochran. Appellants’ first contention has been answered by the Supreme Court. In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), the Court phrased the question at issue in this manner: “May a defendant be required to stand trial and a conviction be sustained where only hearsay evidence was presented to the grand jury which indicted him?” The Court went on to answer the question in the affirmative: ... If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on the face, is enough to call for trial of the charge of the merits. The Fifth Amendment requires nothing more.. .. See also United States v. Hubbard, 603 F.2d 137 (10th Cir. 1979); United States v. Herbst, 565 F.2d 638 (10th Cir. 1977). Thus, appellants’ first argument is without merit. Appellants would have" }, { "docid": "8810327", "title": "", "text": "the grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof . . ..” United States v. Reed, 27 Fed.Cas. 727, 738, [No. 16, 134.] In Holt v. United States, 218 U.S. 245, [31 S.Ct. 2, 54 L.Ed. 1021], this Court had to decide whether an indictment should be quashed because supported in part by incompetent evidence. Aside from the incompetent evidence “there was very little evidence against the accused.” The Court refused to hold that such an indictment should be quashed, pointing out that “The abuses of criminal practice would be enhanced if indictments could be upset on such a ground.” 218 U.S., at 248 [31 S.Ct. 2]. The same thing is true where as here all the evidence before the grand jury was in the nature of “hearsay.” If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and .unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more. 350 U.S. at 362-63, 76 S.Ct. at 408-409 (footnotes omitted). The continuing authority of Costello has been recently reaffirmed, at least in dictum, in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), which upheld an indictment in the face of a charge that it was procured through illegally-obtained evidence: The grand jury’s sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered. Thus, an indictment valid on its face is not subject to challenge on" }, { "docid": "22963015", "title": "", "text": "to c^a™ that the grand jury would not have returned an indictment if the evidence, both testimonial and documentary, complained of by the appellants had not been presented to the grand jury. Courts and counsel may not indulge in such speculation. Even assuming for the sake of discussion that the matters complained of by appellants were false, other evidence was presented to the grand jury. “It is enough ... that there is some competent evidence to sustain the charge issued by the Grand Jury even though other evidence before it is incompetent or irrelevant in an evidentiary sense or even false.” Coppedge v. United States, 311 F.2d 128, 132 (D.C.Cir.1962) cert. denied, 373 U.S. 946, 83 S.Ct. 1541, 10 L.Ed.2d 701 (1963) (emphasis in original) quoted with approval in United States v. Short, 671 F.2d at 181. Furthermore, we are reminded that federal courts are not permitted to test the evidence supporting an indictment. In Short, the trial judge who dismissed a count of an indictment after he concluded that there was absolutely no evidence before the grand jury in support of the conspiracy charge, 671 F.2d 178, was reversed. As the Supreme Court explained in Costello, 350 U.S. at 363, 76 S.Ct. at 408-409 (1956); If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more. (footnote omitted). This language from Costello can only be read to hold that a grand jury presented with inadequate or incompetent evidence may nevertheless be an unbiased" } ]

[ { "docid": "17476172", "title": "", "text": "who were injured in the course of their ship’s service employment “without leaving employees at the mercy of the uncertainty, expense, and delay of fighting out in litigation whether their particular cases fell within” admiralty jurisdiction. See Calbeck v. Travelers Insurance Co., supra, at 121-24, 82 S.Ct. 1196. The 1972 amended prerequisite of “maritime employment” is a clearly expressed congressional perpetuation of the essential element of admiralty jurisdiction over the employee. In other words, the fixed federal compensation is provided in lieu of the uncertainty of a recovery by an injured ship worker for a maritime tort. The occupational hazards in-; tended to be guarded against are the traditional hazards to the ship’s service employee arising in the course of his employment; i. e., the perils of the sea and an unseaworthy vessel recognized under maritime laws. Accordingly we believe that to be entitled to the benefits of LHCA, an employee’s employment must have a realistic relationship to the tradi- ^ tional work and duties of a ship’s service employment. Otherwise the clear and unambiguous congressional language of “maritime employment” is nullified and rendered to read “any employment.” We hold that for an injured employee to be eligible for federal compensation under LHCA, his own work and employment, as distinguished from his employer’s diversified operations, including maritime, must have a realistically significant relationship to “traditional maritime activity involving navigation and commerce on navigable waters,” with the further condition that the injury producing the disability occurred on navigable waters or adjoining areas as defined in § 903. See Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). See also Onley v. South Carolina Electric & Gas Company, 488 F.2d 758 (4th Cir. 1973), and Crosson v. Vance, 484 F.2d 840 (4th Cir. 1973). The Law Judge thought that the Claimant at the time of the accident was not so “engaged in maritime employment” and denied the claim. The Law Judge reasoned that in order for the Claimant to recover: “[A] relationship should exist between the duties of Claimant and some maritime service," } ]

[ { "docid": "21910989", "title": "", "text": "Fusco v. Perini North River Associates, 601 F.2d 659 (2d Cir. 1979), vacated, 444 U.S. 1028, 100 S.Ct. 697, 62 L.Ed.2d 664 (1980) (“Fusco I”). The first decision to take a more restrictive view of the LHWCA coverage of injuries on the actual water was Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1975), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976). Weyerhaeuser rejected the BRB’s construction of the 1972 amendments as not affecting the pre-1972 construction of maritime employment that included all work-injuries on the water. Instead, the Ninth Circuit held that the term “maritime employment” means that the employment “must have a realistically significant relationship to ‘traditional maritime activity involving navigation and commerce on navigable waters.’ ” 528 F.2d at 961 (a test it educed from Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) — a decision we find inapposite for this purpose, for reasons to be stated in V below). Thus, under the Weyerhaeuser test, some employees whose injuries would have been covered under the pre-1972 Act would not be entitled to LHWCA coverage. The Weyerhaeuser court relegated Calbeck and the other pre-1972 decisions “to limbo,” based on the conclusion that the 1972 amendments “radically changed the basis for an employee’s entitlement to federal compensation.” 528 F.2d at 960. In recent years, the more restrictive Wey-erhaeuser test has been accepted, or at least given lip service, by many courts, including this court. Ironically, the case that proved to be the catalyst for the widespread acceptance of the restrictive Weyerhaeuser view regarding accidents upon the actual water was the Supreme Court’s decision in Ford, supra, a case that actually expanded LHWCA shore-side coverage. Subsequent to Ford, over the dissent of three justices, the Supreme Court vacated and remanded the Second Circuit’s Fusco I decision for reconsideration in light of Ford. Perini North River Associates v. Fusco, 444 U.S. 1028, 100 S.Ct. 697, 62 L.Ed.2d 664 (1980). On remand, despite the fact that Ford took a very expansive view of LHWCA coverage, and despite" }, { "docid": "21910995", "title": "", "text": "to be included within the coverage of the Act, the Weyerhaeuser or an equivalent maritime-relationship test may indeed be appropriate. Where we part company with Weyer-haeuser is in its application of such a test to those injured while working on navigable waters, construed for LHWCA purposes as being in maritime employment since Cal-beck. As earlier noted, to restrict this accepted statutory construction is to do so in the complete absence of any intent expressed in the legislative history to do so and, in fact, in the face of express statement by the legislative drafters that the new 1972 definition of employee afforded by the amended section 2(3) “does not exclude other employees traditionally covered.” S.Rep. at 16. See II above. Weyerhaeuser derived its “significant relationship” test for coverage, 528 F.2d at 961, by direct quotation from Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). That decision is inapposite to the issue now before us. The sole issue in Executive Jet was whether there was federal jurisdiction over a suit for damages resulting from an airplane crash into navigable waters, and there the assertion of jurisdiction was based solely upon the provision of 28 U.S.C. § 1333(1) granting federal district courts jurisdiction of “[a]ny civil case of admiralty or maritime jurisdiction.” The Court emphasized that in flights between points in the continental United States, “which are principally over land, the fact that an aircraft happens to fall in navigable waters, rather than on land, is wholly fortuitous.” 409 U.S. at 266, 93 S.Ct. at 503. The Court held that the mere fact that the alleged wrong “occurs” or “is located on” or over navigable waters ... is not of itself sufficient to turn an airplane negligence case into a “maritime tort.” It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity. We hold that unless such a relationship exists, claims arising from airplane accidents are not cognizable in admiralty in the absence of legislation to" }, { "docid": "21910990", "title": "", "text": "whose injuries would have been covered under the pre-1972 Act would not be entitled to LHWCA coverage. The Weyerhaeuser court relegated Calbeck and the other pre-1972 decisions “to limbo,” based on the conclusion that the 1972 amendments “radically changed the basis for an employee’s entitlement to federal compensation.” 528 F.2d at 960. In recent years, the more restrictive Wey-erhaeuser test has been accepted, or at least given lip service, by many courts, including this court. Ironically, the case that proved to be the catalyst for the widespread acceptance of the restrictive Weyerhaeuser view regarding accidents upon the actual water was the Supreme Court’s decision in Ford, supra, a case that actually expanded LHWCA shore-side coverage. Subsequent to Ford, over the dissent of three justices, the Supreme Court vacated and remanded the Second Circuit’s Fusco I decision for reconsideration in light of Ford. Perini North River Associates v. Fusco, 444 U.S. 1028, 100 S.Ct. 697, 62 L.Ed.2d 664 (1980). On remand, despite the fact that Ford took a very expansive view of LHWCA coverage, and despite the fact that Ford did not so much as mention the Weyerhaeuser “significant relationship to navigation or commerce on navigable waters” test for determining “maritime employment,” the Second Circuit found that Ford had “rendered untenable” its holding in Fusco I. Noting Ford’s conclusion that the term “maritime employment” is an occupational concept, based on the nature of a worker’s activities, the Second Circuit read Ford “as precluding any application of the LHWCA as amended in 1972, to an employee whose activities do not bear a significant relationship to navigation or to commerce on navigable waters.” Fusco v. Perini North River Associates, 622 F.2d 1111, 1112-13 (2d Cir. 1980), cert. denied 449 U.S. 1131, 101 S.Ct. 953, 67 L.Ed.2d 119 (1981) (“Fusco II”). The Fusco II court noted that such a reading was consistent with the construction of the term “maritime employment” given by the Weyer-haeuser court, and with the position of the BRB, which, after having been reversed by the Ninth Circuit in Weyerhaeuser, had overruled its previous decisions that had held that the 1972" }, { "docid": "3145691", "title": "", "text": "was not to be covered by the LHWCA, such as trans-shipment of stored cargo or clerical work. See S.Rep. No. 92-1125, 92d Cong., 2d Sess. 13; H.R. Rep. No. 92-1441, 92d Cong. 2d Sess. 10-11, quoted in P. C. Pfeiffer Co., supra, 444 U.S. at 79, 100 S.Ct. at 335, 62 L.Ed.2d at 234; Caputo, supra, 432 U.S. at 265 n.27, 97 S.Ct. at 2358, 53 L.Ed.2d at 334 n.27. On the facts before us, where the job being done clearly had “a realistically significant relationship to ‘traditional maritime activity involving navigation and commerce on navigable waters’ . . .,” Weyerhauser Co. v. Gilmore, 528 F.2d 957, 961 (9th Cir. 1975), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976) (citations omitted), Maze’s work at the time of his injury was maritime. The appellants urge that even if Maze was doing maritime work at the time of his injury, he is not a covered employee because he spent the great majority of his time doing indisputably land-based jobs. They assert that the 1972 amendments extended coverage only to workers who do primarily maritime employment. Arguably, our decision that Maze is a covered employee could be based solely upon the foregoing conclusion that he was engaged in maritime work at the time of his injury. See Thibodaux v. Atlantic Richfield Co., 580 F.2d 841, 843-45 (5th Cir. 1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979); 1A Benedict on Admiralty § 16a (1979); cf. Fusco v. Perini North River Assoc., 601 F.2d 659, 668 (2d Cir. 1979), vacated and remanded, 444 U.S. 1028, 100 S.Ct. 697, 62 L.Ed.2d 664 (1980) (claimant must have major activities on navigable waters). We need not rest on this narrow ground, however, but can look at all the circumstances of Maze’s employment. Where, as here, the claimant was doing maritime work that required him to go into the water and where a significant part of the employer’s overall work, 20%, was maritime, the policy of the Act strongly favors coverage. A finding that Maze was not covered would create" }, { "docid": "878526", "title": "", "text": "this case, another panel of this court rendered a decision in Pippen v. Shell Oil Company and Inland Well Service, Inc., 661 F.2d 378 (5th Cir. 1981). Pippen involved a legal issue virtually identical to that now before this panel. In Pippen, as here, the injured worker was performing wirelining work that was essential to the function of the vessel (drilling barge) upon which he was working — i. e., offshore mineral production. The wireline employee was injured while working on a drilling barge on navigable inland waters. The issue in Pippen, as here, is whether under those circumstances the wireline employee performing temporary specialty work on the drilling barge was engaged in “maritime employment” so as to be covered by the LHWCA. Significantly to the issue before us, Pip-pen noted: Maritime employment is an occupational concept that is dependent upon the nature of the employee’s activities. P. C. Pfeiffer Co. v. Ford, [444 U.S. 69] 100 S.Ct. 328, 335, 62 L.Ed.2d 225 (1979). In order to determine whether an employee’s work is maritime in nature, this Court has held that “we must look to the purpose of the work, not solely to the particular skills used.” Trotti & Thompson v. Crawford, 631 F.2d 1214, 1221 n. 16 (5th Cir. 1980) (carpenter constructing pier was engaged in maritime employment). The relevant inquiry in determining whether an employee was engaged in maritime employment is whether his activities had a “ ‘realistically significant relationship to traditional maritime activity.’” Mississippi Coast Marine, Inc. v. Bosarge, 637 F.2d 994, 998 (5th Cir. 1981) (carpentry work on wooden thirty-foot pleasure boat resting on blocks was maritime employment) (quoting Weyerhaeuser Co. v. Gilmore, 528 F.2d 957, 961 (9th Cir. 1975), cert. denied, [429 U.S. 868] 97 S.Ct. 179, 50 L.Ed.2d 148 (1976)). Fusco v. Perini North River Associates, 622 F.2d 1111, 1113 (2d Cir. 1980) maritime employment refers to activities that “bear a significant relationship to navigation or to commerce on navigable waters,” [construction of sewage plant not connected to traditional maritime activities], cert. denied 449 U.S. 1131, 101 S.Ct. 953, 67 L.Ed.2d 119 (1981). 661" }, { "docid": "21910994", "title": "", "text": "in the course of such employment, no further examination into the relationship of their employment activities to “ ‘traditional maritime activity involving navigation and commerce on navigable waters,’ ” Weyerhaeuser supra, 528 F.2d at 961, is necessary, because by settled construction of the Act their duties necessarily constitute such maritime activity. However, as we noted, see text supra at note 11, the 1972 expansion of situs to include shoreside areas required a different change both in the definition of “employer” to include those within the expanded situs and also in the definition of “employee” so as to exclude those employees injured in the expanded shoreside situs who were not engaged in maritime-related employment. As the legislative committee reports stated, the 1972 revision to include shoreside areas was not intended to cover employees “just because they are injured in an area adjoining navigable waters” or who were not “engaged, in whole or in part in some form of maritime employment.” S.Rep. at 13; H.Rep. at 4708. To delineate only those shoreside employees who were legislatively intended to be included within the coverage of the Act, the Weyerhaeuser or an equivalent maritime-relationship test may indeed be appropriate. Where we part company with Weyer-haeuser is in its application of such a test to those injured while working on navigable waters, construed for LHWCA purposes as being in maritime employment since Cal-beck. As earlier noted, to restrict this accepted statutory construction is to do so in the complete absence of any intent expressed in the legislative history to do so and, in fact, in the face of express statement by the legislative drafters that the new 1972 definition of employee afforded by the amended section 2(3) “does not exclude other employees traditionally covered.” S.Rep. at 16. See II above. Weyerhaeuser derived its “significant relationship” test for coverage, 528 F.2d at 961, by direct quotation from Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). That decision is inapposite to the issue now before us. The sole issue in Executive Jet was whether there was federal" }, { "docid": "21910991", "title": "", "text": "the fact that Ford did not so much as mention the Weyerhaeuser “significant relationship to navigation or commerce on navigable waters” test for determining “maritime employment,” the Second Circuit found that Ford had “rendered untenable” its holding in Fusco I. Noting Ford’s conclusion that the term “maritime employment” is an occupational concept, based on the nature of a worker’s activities, the Second Circuit read Ford “as precluding any application of the LHWCA as amended in 1972, to an employee whose activities do not bear a significant relationship to navigation or to commerce on navigable waters.” Fusco v. Perini North River Associates, 622 F.2d 1111, 1112-13 (2d Cir. 1980), cert. denied 449 U.S. 1131, 101 S.Ct. 953, 67 L.Ed.2d 119 (1981) (“Fusco II”). The Fusco II court noted that such a reading was consistent with the construction of the term “maritime employment” given by the Weyer-haeuser court, and with the position of the BRB, which, after having been reversed by the Ninth Circuit in Weyerhaeuser, had overruled its previous decisions that had held that the 1972 amendments did not in any way reduce the traditional coverage of the LHWCA. Since 1979, the Weyerhaeuser — Fusco II “realistically significant relationship to traditional maritime activity” test for determining whether an individual was engaged in “maritime employment” has frequently been employed by the courts, in eases involving accidents both on the seaward and shoreward sides of the Jensen line. In this circuit, the Weyerhaeuser test has been cited approvingly in several decisions of the court, in cases involving accidents both on the land and the water; nevertheless, LHWCA coverage was found in all of the cases. As might be expected from application of a test that requires determination case-by-case under the specialized facts of each instance, the Weyerhaeuser test — even though recovery has ultimately been upheld — has produced sharp disagreement as to whether under particular facts the on-water employment indeed had the talismanic “significant relationship.” It is of some significance to note that, despite the sometimes cumbersome methodology involved in the disputable borderline case-by-case application of the Weyerhaeuser “significant relationship” test, actually" }, { "docid": "15857749", "title": "", "text": "test (the “situs” requirement) governed coverage. An employee was entitled to benefits if he was injured while working on or over navigable waters of the United States, even though his occupation was not “maritime.” P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 72, 100 S.Ct. 328, 331, 62 L.Ed.2d 225 (1979). There was also a requirement that the worker’s employer have at least one employee, not necessarily the injured one, engaged in maritime employment. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 264, 97 S.Ct. 2348, 2357, 53 L.Ed.2d 320 (1977). Because most of those who employ workers for jobs on or over navigable waters also employ someone in a traditional maritime capacity, this second requirement was nearly always met, leaving the situs test as the only operative limitation on coverage. The 1972 amendments expanded the definition of “navigable waters” to include “any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing or building a vessel .... ” 33 U.S.C. § 903(a). See Caputo, 432 U.S. at 260-64, 97 S.Ct. at 2355-57. But an injury sustained in this expanded area is covered only if the employee was engaged in “maritime employment” which includes “any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker” but not “a master or member of any vessel or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.” 33 U.S.C. § 902(3). In Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1975), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976), this court held that in order for an injured employee’s work to be considered “maritime,” it “must have a realistically significant relationship to ‘traditional maritime activity involving navigation and commerce on navigable waters,’ ” .... Id. at 961, quoting Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 272, 93 S.Ct. 493, 506, 34 L.Ed.2d 454 (1972). Although D-H argues that the decedent’s employment as" }, { "docid": "21911024", "title": "", "text": "Stewart v. Brown & Root, Inc., 7 Benefits Review Board Service [“BRBS”] 356, 361 (1978), aff'd on other grounds sub nom. Brown & Root, Inc. v. Joyner, 607 F.2d 1087 (4th Cir. 1979), cert. denied, 446 U.S. 981, 100 S.Ct. 2960, 64 L.Ed.2d 837 (1980); Gilmore v. Weyerhaeuser Co., 1 BRBS 180, 182-83 (1974), rev’d 528 F.2d 957 (9th Cir. 1975), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976). . In Fusco II, there appears to have been doubt whether the claimant would have been covered under the pre-1972 version of the Act. In that case, the government opposed the petitions for certiorari because the record failed to establish definitively “that [t]he claimants would have been covered under the pre-1972 Act.” Fusco II, supra, Brief for Federal Respondent in Opposition, Nos. 80-639 and 80-651, at 18. . See, e.g., Miller v. Central Dispatch, Inc., supra, 673 F.2d at 781 (water); Boudreaux v. American Workover, Inc., supra, 664 F.2d at 465-66 (water); Pippen v. Shell Oil Co., supra, 661 F.2d at 382 (water); Gilliam v. Wiley N. Jackson Co., 659 F.2d 54, 56-57 (5th Cir. 1981) (water); Hullinghorst Industries, Inc. v. Carroll, 650 F.2d 750, 756 (5th Cir. 1981) (pier), cert. denied, - U.S. -, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982); Mississippi Coast Marine v. Bosarge, 637 F.2d 994, 998 (5th Cir.) (land), modified, 657 F.2d 665 (5th Cir. 1981); Trotti & Thompson v. Crawford, 631 F.2d 1214, 1221 (5th Cir. 1980) (land); Odom Construction Co. v. United States Dep’t of Labor, 622 F.2d 110, 113 (5th Cir. 1980) (land), cert. denied, 450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 614 (1981). . Thibodaux v. Atlantic Richfield Co., 580 F.2d 841 (5th Cir. 1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979), the only Fifth Circuit case in which an employee injured on water was deemed not to be covered by the amended LHWCA, did not discuss the Weyerhaeuser “significant relationship to traditional maritime activities” test. See note 29 below. . See, e.g., Miller v. Central Dispatch, Inc., 673 F.2d 773, 784" }, { "docid": "21910992", "title": "", "text": "amendments did not in any way reduce the traditional coverage of the LHWCA. Since 1979, the Weyerhaeuser — Fusco II “realistically significant relationship to traditional maritime activity” test for determining whether an individual was engaged in “maritime employment” has frequently been employed by the courts, in eases involving accidents both on the seaward and shoreward sides of the Jensen line. In this circuit, the Weyerhaeuser test has been cited approvingly in several decisions of the court, in cases involving accidents both on the land and the water; nevertheless, LHWCA coverage was found in all of the cases. As might be expected from application of a test that requires determination case-by-case under the specialized facts of each instance, the Weyerhaeuser test — even though recovery has ultimately been upheld — has produced sharp disagreement as to whether under particular facts the on-water employment indeed had the talismanic “significant relationship.” It is of some significance to note that, despite the sometimes cumbersome methodology involved in the disputable borderline case-by-case application of the Weyerhaeuser “significant relationship” test, actually in only three decisions was coverage denied by it to a workman injured waterward of the Jensen line who would apparently have been covered by the pre-1972 Act under Calbeck: Weyerhaeuser itself, by the Ninth Circuit; Fusco II (but see note 25) by the Second; and, adhering to Fusco II, Churchill v. Perini North River Associates, 652 F.2d 255 (2d Cir. 1981), cert. granted,U. S. -, 102 S.Ct. 1425, 71 L.Ed.2d 647 (1982). (Also, although not employing the Weyerhaeuser rationale, one decision of this court denied coverage for an on-water accident of an oil field worker, who presumably would have been covered under Calbeck, on a basis subsequently disapproved by Ford and subsequent decisions of this circuit. Thibodaux v. Atlantic Richfield Co., 580 F.2d 841 (5th Cir. 1978). V. Distinction Between Shoreside and On-Water Injuries Insofar as Being in “Maritime Employment” We have found no legislative intent to alter the previously accepted construction of the Act as considering employment on the navigable waters to be “maritime employment.” See II and III above. For employees injured" }, { "docid": "878533", "title": "", "text": "Pfeiffer, supra, of course, requires that the “situs” and “status” tests are to be independently satisfied, and holds that “status” is occupational and not geographical in nature. Pfeiffer, supra, 444 U.S. at 79, 100 S.Ct. at 335. However, Pfeiffer recognizes that the congressional purpose was to extend coverage. Thus it may be possible to consider that the “status” portion of the test for workers-on-water is satisfied by the fact of their employment on water; but this would distort the statutory language, whatever Congress’ intent, if the worker’s presence on the water is fortuitous and otherwise unconnected with maritime employment. Moreover, at least three cases decided by the courts of appeals, including one by the Fifth Circuit, refuse to consider the mere fact of injury while working on water sufficient for coverage. See Fusco v. Perini North River Associates, 601 F.2d 659 (2d Cir. 1979), vacated and remanded, 444 U.S. 1028, 100 S.Ct. 697, 62 L.Ed.2d 664 (1980), rev’d on remand, 622 F.2d 1111 (2d Cir. 1980), cert. denied, 449 U.S. 1131, 101 S.Ct. 953, 67 L.Ed.2d 119 (1981) (worker injured over navigable waters while engaged in constructing sewage disposal project ex tending over water not engaged in “maritime employment” and thus not covered by LHWCA); Thibodaux v. Atlantic Richfield Co., 580 F.2d 841 (5th Cir. 1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979) (worker who drowned when overloaded crewboat sank was not engaged in “maritime employment,” and thus not covered by LHWCA; he was merely being transported to his job site by water, notwithstanding that on the occasion in question the vessel was to stop and place a pollution pan on a sunken barge used as a dock); Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1975), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976) (“pondman” injured while working at his duties involving the sorting of logs while moving about on walkways and logs that were floating on navigable waters was not engaged in “maritime employment” and thus not covered by LHWCA). These decisions concern, however, situations where the employee" }, { "docid": "7492131", "title": "", "text": "to return to work” she was not rehired. Although she sought other employment, this employment was intermittent and less remunerative. The ALJ specifically found that Miller could do certain light work but that the employer had failed to establish that Miller had actual opportunities to obtain other work. Based on Miller’s earnings at the time of her injury and those following the injury, the ALJ determined that Miller had suffered a 50% temporary partial disability and ordered Central to pay benefits, medical expenses, and attorneys’ fees. The View from the Board Both Miller and Central appealed the ALJ’s decision to the Benefits Review Board pursuant to § 21(b) of the LHWCA. Central’s challenge to the ALJ’s opinion is twofold: (1) Miller was not engaged in maritime employment as required by § 2(3) of the Act, 33 U.S.C. § 902(3), and thus there was no coverage; and (2) the decision below was not supported by substantial evidence. Miller’s appeal contests the ALJ’s denial of additional compensation pursuant to § 14(e) and § 14(f), 33 U.S.C. § 914(e), (f). The BRB, one member dissenting, held that Miller was not engaged in maritime employment pursuant to § 2(3) and thus was not covered under the Act. The BRB began by stating that employment or injury over actual navigable waters is not dispositive in ascertaining maritime employment under the Act. Finding that Miller was not included in any of the specific occupations mentioned in § 2(3) (longshoreman, ship repairman, ship builder, or harbor worker), the BRB focused on whether Miller was engaged in some form of “maritime employment,” as that term is defined by the BRB. The BRB’s definition provides: “[A] claimant’s employment must have a realistically significant relationship to maritime activities involving navigation and commerce over navigable waters in order for that employment to be deemed maritime employment under Section 2(3).” Sedmak v. Perini North River Associates, 9 BRBS 378, 386 (1978), rev’d sub nom., Fusco v. Perini North River Associates (Fusco I), 601 F.2d 659 (2d Cir. 1979), vacated and remanded, 444 U.S. 1028, 100 S.Ct. 697, 62 L.Ed.2d 664, Board’s decision" }, { "docid": "21910988", "title": "", "text": "the amended Act does not exclude coverage from anyone who would have been covered under the original Act; and thus that any injury upon the navigable waters is still compensable. This view has also had the consistent support of the director of the Office of Workers’ Compensation Programs, the administrative agency charged with enforcement of the LHWCA. This court has held that the director’s views are entitled to deference. These authorities rely primarily on the legislative history and the remedial purposes of the 1972 amendments in support of the proposition that the amended Act does not exclude anyone who would have been covered prior to 1972. In the adjudicative context, at least prior to 1979, it appeared that this position would be widely accepted. It was adopted by the Benefits Review Board (“BRB”), the entity created by the 1972 amendments to hear administrative appeals of LHWCA coverage disputes. Furthermore, this “no exclusion of those traditionally covered” doctrine was initially embraced by the courts in St. Ju-lien v. Diamond M Drilling, 403 F.Supp. 1256 (E.D.La.1975), and Fusco v. Perini North River Associates, 601 F.2d 659 (2d Cir. 1979), vacated, 444 U.S. 1028, 100 S.Ct. 697, 62 L.Ed.2d 664 (1980) (“Fusco I”). The first decision to take a more restrictive view of the LHWCA coverage of injuries on the actual water was Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1975), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976). Weyerhaeuser rejected the BRB’s construction of the 1972 amendments as not affecting the pre-1972 construction of maritime employment that included all work-injuries on the water. Instead, the Ninth Circuit held that the term “maritime employment” means that the employment “must have a realistically significant relationship to ‘traditional maritime activity involving navigation and commerce on navigable waters.’ ” 528 F.2d at 961 (a test it educed from Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) — a decision we find inapposite for this purpose, for reasons to be stated in V below). Thus, under the Weyerhaeuser test, some employees" }, { "docid": "5508193", "title": "", "text": "WYZANSKI, Senior District Judge: This case is before us on a remand from the Supreme Court of the United States. Perini No. River v. Fusco, 444 U.S. 1028, 100 S.Ct. 697, 62 L.Ed.2d 664 (1980), vacated our judgment in Fusco et al. v. Perini North River Associates et al., 601 F.2d 659 (2nd Cir. 1979) and remanded the case to us “for further consideration in light of P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 100 S.Ct. 328, 62 L.Ed.2d 225 (1979),” Mr. Justice Brennan, Mr. Justice Marshall and Mr. Justice Blackmun dissenting. As shown in our original opinion in Fusco v. Perini North River Associates, supra, p. 661, this case involves two separate claims for compensation under the Longshoremen’s and Harbor Workers’ Compensation Act [LHWCA], as amended in 1972, 86 Stat. 1251, 33 U.S.C. § 901 (1970 ed., Supp. V), et seq. Each claimant was injured over navigable waters while engaged in constructing a sewage disposal project extending over the water. The claimants contended that when injured they were “employees” within § 2(3) of LHWCA on the broad ground that each was “engaged in maritime employment” and on the narrow ground that each was a “harborworker.” In Fusco’s case Administrative Law Judge Lesser, without expressly ruling on the narrow ground that Fusco was a “harborworker,” concluded that “at the time of his injury the Claimant was employed as a construction laborer engaged in the construction of a substructure for a sewage disposal plant over navigable waters, which employment was within the coverage of the Act.” (p. 661). Accordingly, the ALJ allowed Fusco compensation. In Sullivan’s case Administrative Law Judge Feldman concluded that “Claimant is not a longshoreman, ship repairman, shipbuilder, or shipbreaker, nor could he be classified as a harbor worker,” (p. 662), and, therefore, denied, him compensation under the LHWCA. The Benefits Review Board [BRB] reversed the AU in Fusco and affirmed the ALJ in Sullivan on the ground that “the claimants herein were engaged in the construction of a sewage disposal plant, their employment did not have a realistically significant relationship to maritime activities involving navigation and" }, { "docid": "21910987", "title": "", "text": "the course of maritime-related employment. We can find no sign in the legislative history or purpose that the Congress intended by the 1972 amendments to change the prior well-accepted understanding that an injury on navigable waters was compensable as being in “maritime employment.” IV. Post-1972 Commentary and Jurisprudence Following adoption of the 1972 amendments, the new “maritime employment” status test has arisen for application in two situations. The bulk of the litigation concerns application of the test in the new extended shoreside application, as in Caputo (1977) and Ford (1979), which we have discussed at I above. A substantial minority of the decisions of the lower courts, however, attempted to apply a status test in some formulation to work-related injuries on navigable waters — i.e., to those considered as in “maritime employment” prior to the 1972 revision — , although in all but three or four instances (only one from this circuit), coverage was nevertheless upheld. Preliminarily, we note that the majority view of the commentators, including the highly respected Gilmore and Black, is that the amended Act does not exclude coverage from anyone who would have been covered under the original Act; and thus that any injury upon the navigable waters is still compensable. This view has also had the consistent support of the director of the Office of Workers’ Compensation Programs, the administrative agency charged with enforcement of the LHWCA. This court has held that the director’s views are entitled to deference. These authorities rely primarily on the legislative history and the remedial purposes of the 1972 amendments in support of the proposition that the amended Act does not exclude anyone who would have been covered prior to 1972. In the adjudicative context, at least prior to 1979, it appeared that this position would be widely accepted. It was adopted by the Benefits Review Board (“BRB”), the entity created by the 1972 amendments to hear administrative appeals of LHWCA coverage disputes. Furthermore, this “no exclusion of those traditionally covered” doctrine was initially embraced by the courts in St. Ju-lien v. Diamond M Drilling, 403 F.Supp. 1256 (E.D.La.1975), and" }, { "docid": "15857750", "title": "", "text": "§ 903(a). See Caputo, 432 U.S. at 260-64, 97 S.Ct. at 2355-57. But an injury sustained in this expanded area is covered only if the employee was engaged in “maritime employment” which includes “any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker” but not “a master or member of any vessel or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.” 33 U.S.C. § 902(3). In Weyerhaeuser Co. v. Gilmore, 528 F.2d 957 (9th Cir. 1975), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976), this court held that in order for an injured employee’s work to be considered “maritime,” it “must have a realistically significant relationship to ‘traditional maritime activity involving navigation and commerce on navigable waters,’ ” .... Id. at 961, quoting Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 272, 93 S.Ct. 493, 506, 34 L.Ed.2d 454 (1972). Although D-H argues that the decedent’s employment as a pile driver on a marine construction project fails to satisfy the Weyerhaeuser test for “maritime employment,” we recently stated that the Act covers workers involved in construction related to maritime activities. Schwabenland v. Sanger Boats, 683 F.2d 309 at 311 (9th Cir. 1982). In Duncanson-Harrelson Co. v. Director (OWCP), 644 F.2d 827, 830 (9th Cir. 1981), a case involving facts very similar to the present appeal, we upheld the finding of the BRB that two employees, injured while constructing an off-shore dock for the unloading of oil from tankers, were engaged in maritime employment. One of the claimants was constructing a dolphin when his injury occurred. Similarly, the decedent in the present case was killed when the top of a dolphin piling he was cutting fell on him. B. Member of a Grew of a Vessel D-H argues that decedent was a crew member as defined by section 2(3) of the Act, 33 U.S.C. § 902(3). Section 2(3) provides that “the term ‘employee’ means any person engaged in maritime employment ..., but such term" }, { "docid": "878564", "title": "", "text": "set forth in the Section 2(3) definition, the ref erence to “any longshoreman or other persons engaged in longshoring operations, any harborworker including a ship repairman, shipbuilder, and shipbreaker.” 622 F.2d at 1113. The position of the Ninth Circuit, in turn, is illustrated by a decision cited and relied on by the Second at the reference noted just above in Fusco II. In that case, Weyerhauser Co. v. Gilmore, 528 F.2d 957 (9th Cir.), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976), the Ninth Circuit addressed a claim to LHWCA benefits made by Mr. Robert Gilmore, a sawmill employee who was injured when he fell from a floating walkway over Coos Bay, a saltwater inlet of the Pacific Ocean. Like the district court in St. Julien, the Benefits Review Board had adopted a “general expansion of coverage, without restriction” approach to the 1972 amendments: “[AJnyone covered under the Act prior to the 1972 amendments must indeed be permitted to come within its protection subsequent to the amendments. “The fact that claimant is called a pond-man or millworker is irrelevant as to determining his qualifications as an employee within the terms of the Act. Therefore, the Board finds that Claimant’s injury in the course of his employment was within the coverage of the Longshoremen’s and Harborworkers’ Compensation Act, as amended, and he is entitled to benefits.” Id. at 959 (emphasis added). The Ninth Circuit rejected this approach and reversed the Board’s decision. In so doing, it held that, for status coverage, an employee’s work must bear a realistic relationship to “the traditional work and duties of a ship’s service employment,” to “ ‘traditional maritime activity involving navigation and commerce on navigable waters.’ ” Id. at 961 (emphasis added). The language of the opinion is both correct and apposite here, and it merits direct quotation: The Board’s erroneous conclusion that Claimant is entitled to LHCA benefits stems from a misinterpretation of the frequently stated “expansion” of coverage by the 1972 amendments. This expansion refers only to the broadened definition of “navigable waters,” (maritime jurisdictional requirement) which now includes" }, { "docid": "878532", "title": "", "text": "the coverage of the LHWCA was meant to extend protection to additional workers (i. e., certain maritime workers even though injured on land), the specific statement in the Senate report’s section-by-section analysis quoted above, and the fact that offshore oil workers injured upon navigable waters would have been covered prior to the 1972 amendments, Calbeck, supra; see also Hendon v. Marathon-LeTourneau, 414 F.Supp. 1282, 1284 (S.D.Miss.1976) (mention of LHWCA benefits paid to off-shore oil worker for pre-1972 injury); Case v. St. Paul Fire & Marine Ins. Co., 324 F.Supp. 352 (E.D.La.1971) (same), appeal dismissed as moot, 456 F.2d 252 (5th Cir. 1972), a persuasive argument could be made that any worker who would have been covered under the pre-1972 LHWCA is still covered under the post-1972 LHWCA. Indeed, the Supreme Court has expressly reserved the question whether “Congress excluded people who would have been covered before the 1972 Amendments; that is, workers who are injured on navigable waters as previously defined.” Caputo, supra, 432 U.S. at 265 n. 25, 97 S.Ct. at 2358 n. 25. Pfeiffer, supra, of course, requires that the “situs” and “status” tests are to be independently satisfied, and holds that “status” is occupational and not geographical in nature. Pfeiffer, supra, 444 U.S. at 79, 100 S.Ct. at 335. However, Pfeiffer recognizes that the congressional purpose was to extend coverage. Thus it may be possible to consider that the “status” portion of the test for workers-on-water is satisfied by the fact of their employment on water; but this would distort the statutory language, whatever Congress’ intent, if the worker’s presence on the water is fortuitous and otherwise unconnected with maritime employment. Moreover, at least three cases decided by the courts of appeals, including one by the Fifth Circuit, refuse to consider the mere fact of injury while working on water sufficient for coverage. See Fusco v. Perini North River Associates, 601 F.2d 659 (2d Cir. 1979), vacated and remanded, 444 U.S. 1028, 100 S.Ct. 697, 62 L.Ed.2d 664 (1980), rev’d on remand, 622 F.2d 1111 (2d Cir. 1980), cert. denied, 449 U.S. 1131, 101 S.Ct. 953, 67" }, { "docid": "7492132", "title": "", "text": "914(e), (f). The BRB, one member dissenting, held that Miller was not engaged in maritime employment pursuant to § 2(3) and thus was not covered under the Act. The BRB began by stating that employment or injury over actual navigable waters is not dispositive in ascertaining maritime employment under the Act. Finding that Miller was not included in any of the specific occupations mentioned in § 2(3) (longshoreman, ship repairman, ship builder, or harbor worker), the BRB focused on whether Miller was engaged in some form of “maritime employment,” as that term is defined by the BRB. The BRB’s definition provides: “[A] claimant’s employment must have a realistically significant relationship to maritime activities involving navigation and commerce over navigable waters in order for that employment to be deemed maritime employment under Section 2(3).” Sedmak v. Perini North River Associates, 9 BRBS 378, 386 (1978), rev’d sub nom., Fusco v. Perini North River Associates (Fusco I), 601 F.2d 659 (2d Cir. 1979), vacated and remanded, 444 U.S. 1028, 100 S.Ct. 697, 62 L.Ed.2d 664, Board’s decision aff’d on remand (Fusco II), 622 F.2d 1111 (2d Cir. 1980), cert. denied, 449 U.S. 1131, 101 S.Ct. 953, 67 L.Ed.2d 119 (1981); Churchill v. Perini North River Associates, 652 F.2d 255 (2d Cir. 1981), cert. granted, --- U.S. ---, 102 S.Ct. 1425, 71 L.Ed.2d 647 (1982) (considering effect of Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980) on Fusco II). Applying its own definition to the facts, the BRB proceeded to dissect the occupational aspects of Miller’s job, finding that her work as a guard was not within the Act. To support this conclusion, the BRB relied exclusively on three of its prior decisions, all of which denied coverage to guards and all of which, as discussed in more detail later, have been reversed by Courts of Appeals. The BRB, in analyzing Miller’s work as a driver, found that this activity “was not significantly related to maritime activities. Rather, it was an integral part of a land transportation service.” While acknowledging that Miller was often required to" }, { "docid": "5702385", "title": "", "text": "negligence of a vessel within the meaning of 33 U.S.C. § 905(b) (1976), so that his remedies are not limited by the exclusivity provision of the LHWCA, 33 U.S.C. § 905(a) (1976). Since we hold that the record establishes that he was not engaged in maritime employment, we do not reach his second contention. In P. C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979), the Supreme Court explained that the status test for recovery under the LHWCA is not directed at geographical considerations but “refers to the nature of a worker’s activities.” Id. at 78. The fact that appellant’s accident took place on the Peking is not dispositive of the question of whether he was engaged in “maritime employment” within the meaning of § 2(3) of the LHWCA. Our Court, in decisions since Pfeiffer, has interpreted the status test to “preclud[e] any application of the LHWCA ... to an employee whose activities do not bear a significant relationship to navigation or to commerce on navigable waters.” Fusco v. Perini North River Associates, 622 F.2d 1111, 1113 (2 Cir. 1980), cert. denied, 449 U.S. 1131 (1981). Accord, Churchill v. Perini North River Associates, 652 F.2d 255, 256 n.1 (2 Cir. 1981) (per curiam) (quoting Fusco), cert. granted sub nom. Director, Office of Workers’ Compensation Programs v. Perini, - U.S. - (1982). Other courts of appeals have adopted or retained similar tests subsequent to Pfeiffer. E.g., Duncanson-Harrelson Co. v. Director, Office of Workers’ Compensation Programs, 644 F.2d 827, 830 (9 Cir. 1981); Odom Construction Co. v. Department of Labor, 622 F.2d 110, 113 (5 Cir. 1980), cert. denied, 450 U.S. 966 (1981). The latter two cases rely on Weyerhauser Co. v. Gilmore, 528 F.2d 957 (9 Cir. 1975), cert. denied, 429 U.S. 868 (1976), a pre-Pfeiffer case which stated a requirement that “maritime employment” must have “a realistically significant relationship to ‘traditional maritime activity involving navigation and commerce on navigable waters.’ ” Id. at 961, quoting Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 272 (1972). We hold that appellant has not satisfied the status test. The Peking’s" } ]

[ { "docid": "23080047", "title": "", "text": "embraces mineral land. The grant is found in § 6 of the Act of Congress of July .16, 1894, c. 138, 28 Stat. 107, and is copied in the margin with another closely related section of the same act. It neither expressly includes mineral lands nor expressly excludes them. If it did either, it would be conclusive of the will of Congress upon the point. But, as it makes no mention of such lands, it is permissible — indeed, is essential — to inquire whether the congressional will is otherwise made manifest, that is to say, whether the general words of the grant are to be read in the light of other statutes and a settled public policy in respect of mineral lands. In the legislation concerning the public lands it has been the practice of Congress to make a distinction between mineral lands and other lands, to deal with them along different lines, and to withhold mineral lands, from disposal save under laws specially including them. This practice began with the ordinance of May 20, 1785, 10 Journals of Congress, Folwell’s ed., 118, and was observed with such persistency in the early land laws 2**5as to lead this court to say in United States v. Gratiot, 14 Pet. 526, “It has been the policy of the government, at all times in disposing of the public lands, to reserve the mines for the use of the United States,” and also to hold in United States v. Gear, 3 How. 120, that an act making no mention of lead-mine lands and providing generally for the sale of “all the lands” in certain new land districts, “reserving only” designated tracts, “any law of Congress heretofore existing to the contrary notwithstanding,” could not be regarded as disclosing a purpose on the part of Congress, to depart from “the policy which had governed its legislation in respect to lead-mine lands,” and so did not embrace them. A like practice prevailed in respect of saline lands, and in Morton v. Nebraska, 21 Wall. 660, where a disposal of such lands under an act providing generally" } ]

[ { "docid": "6532475", "title": "", "text": "otherwise disposed of by or under the authority of any act of Congress other lands equivalent thereto, in legal subdivisions of not less than one quarter section and as contiguous as may be to the section in lieu of which the same is taken, are hereby granted to said state for the support of common schools, such indemnity lands to be selected within said state in such manner as the Legislature may provide, with the approval of the Secretary of the Interior: Provided, that the second, sixteenth, thirty-second, and thirty-sixth sections embraced in permanent reservations for national purposes shall not, at any time, be subject to the grants nor to the indemnity provisions of this act, nor shall any lands embraced in Indian, military, or other reservations of any character be subject to the grants or to the indemnity provisions of this act until the reservation shall have been extinguished and such lands be restored to and become a part of the public domain,” 28 U. S. Stat. L. c. 138, p. 107, § 6. There has been for some time a settled policy of the general government that public lands of a mineral character, unless expressly included, are excluded from grants to the states. 22 R. C. L. § 80, p. 333. In Mining Co. v Consolidated Mining Co., 102 U. S. 167, 26 L. Ed. 126, the court held that the grant of the sixteenth and thirty-sixth sections of public land to the state of California for school purposes made by the Act of March 3, 1853 (10 Stat. 246), was not in-tended to cover mineral lands, because such lands were impliedly excluded by the settled policy of the government. This ease has been followed down through a line of eases such as Mullan & Another v. United States, 118 U. S. 271, 6 S. Ct. 1041, 30 L. Ed. 170, and Davis’ Administrator v. Weibbold, 139 U. S. 507, 11 S. Ct. 628, 35 L. Ed. 238, to practically the last direct word on the subject in United States v. Sweet, Administrator of Sweet, 245 U. S." }, { "docid": "6532476", "title": "", "text": "There has been for some time a settled policy of the general government that public lands of a mineral character, unless expressly included, are excluded from grants to the states. 22 R. C. L. § 80, p. 333. In Mining Co. v Consolidated Mining Co., 102 U. S. 167, 26 L. Ed. 126, the court held that the grant of the sixteenth and thirty-sixth sections of public land to the state of California for school purposes made by the Act of March 3, 1853 (10 Stat. 246), was not in-tended to cover mineral lands, because such lands were impliedly excluded by the settled policy of the government. This ease has been followed down through a line of eases such as Mullan & Another v. United States, 118 U. S. 271, 6 S. Ct. 1041, 30 L. Ed. 170, and Davis’ Administrator v. Weibbold, 139 U. S. 507, 11 S. Ct. 628, 35 L. Ed. 238, to practically the last direct word on the subject in United States v. Sweet, Administrator of Sweet, 245 U. S. 563, 38 S. Ct. 193, 62 L. Ed. 473, where the very section involved here of the Utah Enabling Act was construed, and ‘t was held that the school section grant to the state of Utah thereby was not intended to embrace land known to be valuable for mineral at the time of the admission of the state, and the court says (567, 571, 572 [38 S. Ct. 193]): “In the legislation concerning the public lands it has been the practice of Congress to make a distinction between mineral lands and other lands, to deal with them along different lines, and to withhold mineral lands from disposal save under laws specially including them. * * * And while the mineral land laws are not applicable to all the public land states, some being specially excepted, there has been no time since their enactment when they were not applicable to Utah. * * * What has been said demonstrates that the school grant to Utah must be read in the light of the mining laws, the" }, { "docid": "10615995", "title": "", "text": "to a further appeal to the Secretary. Upon the ultimate findings, the Commissioner decides, subject to the supervision and control of the Secretary, what action, if any, shall be taken. Compare George W. Bally, 41 L. D. 295, 299. Circular No. 460, February 26, 1916, 44 L. D. 572, prescribes the procedure. The proceedings here involved concern Section 36, Township 30 South, Range 23 East, Mount Diablo B. & M. — that land being in Elks Hills, Kern County, California. Section 36 is one of the sections in each township which, if not mineral or otherwise disposed of, was granted by Congress to the State of California in aid of public schools, by Act of March 3,1853, c. 145, § 6,10 Stat. 244, 246. Under patents issued by the State in 1910, and mesne conveyances, the Standard Oil Company claims title to part, and an interest in the rest, of the section. Drilling on this land, begun in 1918, has been followed by extensive oil mining, operations. The proceedings were based on a charge that on January 26, 1903, the date of the approval of the survey, the land was known to be mineral in character. If the land was then known to be mineral, the title confessedly did not pass by the Act. For Congress excluded mineral land from the grant. Mining Co. v. Consolidated Mining Co., 102 U. S. 167; Mullan v. United States, 118 U. S. 271, 276. See also Wyoming v. United States, 255 U. S. 489, 500; Work v. Louisiana, 269 U. S. 250, 257-8. If it was not then known to be mineral, the legal title passed to the State on that date. For the land was within one of the sections in place designated in the granting Act. United States v. Morrison, 240 U. S. 192; United States v. Sweet, 245 U. S. 563. The Act of 1853 here involved, like those granting school lands to many other States, makes no provision for determining what part of the land is thus excluded from the grant. It does not provide for the issue of" }, { "docid": "4290423", "title": "", "text": "so granted, but mineral lands were not subject to selection by the state, and were not included in the grant. Section 2318, Rev. Stat. (30 USCA § 21); Independent Coal & Coke Company v. United States, 274 U. S. 640, 642, 47 S. Ct. 714, 71 L. Ed. 1270; Milner v. United States (C. C. A.) 228 F. 431, 439; Mullan v. United States, 118 U. S. 271, 276, 6 S. Ct. 1041, 30 L. Ed. 170; United States v. Sweet, 245 U. S. 563, 38 S. Ct. 193, 62 L. Ed. 473. In 1896 the Legislature of Utah created a board of land commissioners and conferred upon it the control and management of such granted lands, and prescribed regulations for the selection and sale thereof. Laws of Utah 1896, e. 80. Pursuant thereto, and between 1900 and 1903, Stanley B. Milner and his relatives and associates applied to purchase the lands in controversy, describing them as “grazing lands” and agreeing to release the state from its obligation to sell “if the said land shall hereafter be determined to bo mineral in character.” These applications were accompanied by affidavits that the applicants were well acquainted with the lands, and that they were nonmineral. The state board relied upon the truthfulness of the affidavits, and its president and secretary made affidavit that the board had caused said lands to be examined, and that they were nonmineral. The state board then filed these documents with the local register and receiver of the United States Land Office at Salt Lake City, who certified that the lands were not listed on the survey as mineral lands; whereupon all papers were forwarded to the Commissioner of the General Land Office at Washington, and in reliance thereon the lands were certified to the state of Utah between 1901 and 1904. The agreement of the Milners to purchase then attached, under which the Milners had ten years to pay the purchase price, $1.50 an acre. The purchasers then assigned to the Carbon County Land Company, a corporation in which Stanley B. Milner owned 99.95 per cent, of" }, { "docid": "18177144", "title": "", "text": "until a definite mineral policy was' decided upon, and that a grant of sections 16 and 36, in each township, of the public lands to the State of California for school purposes did not cover mineral lands. United States v. Sweet, 245 U.S. 563, 38 S.Ct. 193, 62 L.Ed. 473 (1918), rules that the Utah Enabling Act of 1894 granting school sections to Utah, silent as to .minerals, did not pass mineral lands because at that time there had been established a general policy initiated in 1866 of disposing of mineral lands only under laws especially providing for their disposal. Under those authorities West Coast’s permissive right to enter did not include the right to enter mineral lands in California. The decision in Work v. Louisiana that the Act of March 2, 1849, granting swamp and overflowed lands to Louisiana did not exclude mineral lands, does not undermine the decisions in the Ivanhoe Mining Company and Sweet cases. The Supreme Court distinguished the Sweet case by pointing out that the Utah Enabling Act of 1894 was passed after the establishment long prior thereto of a settled policy in respect of mineral lands by which they were withheld from disposal save under laws expressly including them; and distinguished the Ivanhoe Mining Company ease by pointing out that that decision, involving the 1853 Act, was not upon the ground that there was at that time any settled and general policy of reserving mineral lands, but, on the contrary, was upon the ground that the discovery in 1849 that California was rich in precious metals had led to the adoption by Congress, in reference to California, of a local policy “by which, unlike the ordinary laws for disposing of public lands in agricultural states, the mineral lands in that State were uniformly reserved from sale, preemption and grants for public purposes.” It has long been recognized by the commentators that mineral lands are not subject to scrip selection. I Lindley, Mines, § 211 (3rd Ed.1914); Ricketts, American Mining Law, Bulletin No. 123, California State Division of Mines, Vol. 1, Page 39. The rejection" }, { "docid": "4290425", "title": "", "text": "the stock.' These lands were in fact underlain with valuable coal deposits, and are mineral lands •within the statute. Mullan v. United States, 118 U. S. 271, 6 S. Ct. 1041, 30 L. Ed. 170. There was no exposure of commercially valuable coal on any subdivision of the lands selected; and until the decision in 1911 of’ United States v. Diamond Coal & Coke Company (C. C. A. 8) 191 F. 786, affirmed in 233 U. S. 236, 34 S. Ct. 507, 58 L. Ed. 936, many lawyers and some courts believed that such exposure was an essential to the listing of lands as mineral. A rule promulgated by the Commissioner of the General Land Office and decisions of the Land Office were to that effect. However, since the decision of the Diamond Coal & Coke Company Case, it is clear that the mineral character of land may be established by any satisfactory evidence, including geologic inference. The proof in the Milner Case, and in this case, leaves no doubt that the formation of the surrounding country, the outcroppings and development of contiguous territory, were such as to demonstrate the existence of valuable coal deposits under the lands involved, and that the Milners knew the facts indicating the presence of such minerals when they made their affidavits. When these facts became known to the government, it brought an action, in 1907, against the Milners and their assignee, alleging that the lands were mineral in character and' did not pass under the grant to the state; setting out that the certifications from the United States to the state had been procured by the fraudulent misrepresentations of the Milners; alleging that such certifications and all conveyances made thereunder-were void, and that possession of the lands should be restored to the United States, and all clouds on the title-of the United States should be removed. The bill prayed specifically for the cancellation and surrender of the Milner contracts, and for general relief. The* state of Utah was not made a party. The records of the state land board disclose that the day after" }, { "docid": "17748297", "title": "", "text": "containing salt springs or lead mines, the later Act of 1847 providing for the sale of the mineral lands in the State should be construed as not withdrawing such lands within the school sections from the compact with the State. The same conclusion was’ also reached in an unreported opinion given by the Acting Attorney General (the then Solicitor General) to the Secretary of the Interior in September, 1916, in which, citing Cooper v. Roberts in support of his views, he said: “ There was no exception of mineral land from the swamp land grant made to the State of Louisiana and prior to that time . . . the only reservation of minerals made by the Federal Government in any of its legislation affecting the public lands related to lands containing salt springs, lead mines and contiguous tracts. The policy of reserving minerals generally was not established until after the swamp land grant was made to Louisiana.” This conclusion is not in conflict with the later decisions relating to school lands in Mining Co. v. Consolidated Mining Co., 102 U. S. 167 — followed in Mullan v. United States, 118 U. S. 271— and United States v. Sweet, 245 U. S. 563. In the Mining Co.. Case, in which it was held that a provision in the Act of 1853 for the sale of public lands in California, granting certain sections to the State for school purposes, was not intended tot, cover mineral lands, the decision was not based upon the ground that there was at that time any settled and general policy of reserving mineral lands, but, on the contrary, -on the ground that the discovery in 1849 that California was rich in precious metals, bring- . ing its mineral lands to the attention of Congress, had led to the adoption in reference to that State of a local policy, plainly manifested in other provisions of the Act making specific exceptions of mineral lands, by which, unlike the ordinary laws for disposing of public lands in agricultural States, the mineral lands in that State were uniformly reserved from" }, { "docid": "23080053", "title": "", "text": "selection by the State as indemnity school lands. The conditions ensuing from the discovery of gold and other minerals in the western States and Territories resulted in a general demand for a system of laws expressly opening the mineral lands to exploration, occupation and acquisition, and Congress, responding to this demand, adopted from 1864 to 1873 a series of acts dealing with practically every, phase of the subject and covering all classes of mineral lands, including coal lands. These acts, with some before noticed, were carried into a chapter of the Revised Statutes entitled “Minerals Lands and Mining Resources.” Taken collectively they constitute a special code upon that subject and show that they are intended not only to establish a particular mode of disposing of mineral lands, but also to .except and reserve them from all other grants and modes of disposal where there is no express provision for their inclusion. Thus the policy of disposing of mineral lands only under laws specially including them became even more firmly established than before, and this is recognized in our decisions. Mining Co. v. Consolidated Mining Co., supra, 174; Deffeback v. Hawke, 115 U. S. 392, 402; Davis v. Weibbold, 139 U. S. 507, 516. And while the mineral-land laws are not applicable to all the public land States, some being specially excepted, there has been no time since their enactment when they were not applicable to Utah. Another statute indicative of the policy of Congress and pertinent to the present inquiry is the Act of February 28, 1891, c. 384, 26 Stat. 796, which defines the indemnity to which a State or Territory is entitled in respect of its school grant. In addition to dealing with deficiencies occurring in other ways, it provides, \"And other lands of equal acreage are also hereby Appropriated and granted, and may be selected by said State or Territory where sections sixteen or thirty-six are mineral land.” In this there is a plain implication that where those sections are mineral-known to be so when the grant takes effect — they do not pass under the grant." }, { "docid": "23080054", "title": "", "text": "recognized in our decisions. Mining Co. v. Consolidated Mining Co., supra, 174; Deffeback v. Hawke, 115 U. S. 392, 402; Davis v. Weibbold, 139 U. S. 507, 516. And while the mineral-land laws are not applicable to all the public land States, some being specially excepted, there has been no time since their enactment when they were not applicable to Utah. Another statute indicative of the policy of Congress and pertinent to the present inquiry is the Act of February 28, 1891, c. 384, 26 Stat. 796, which defines the indemnity to which a State or Territory is entitled in respect of its school grant. In addition to dealing with deficiencies occurring in other ways, it provides, \"And other lands of equal acreage are also hereby Appropriated and granted, and may be selected by said State or Territory where sections sixteen or thirty-six are mineral land.” In this there is a plain implication that where those sections are mineral-known to be so when the grant takes effect — they do not pass under the grant. And it does not militate against this implication that under another, provision the State may surrender those sections and take.other lands in lieu of them where, although not known to be mineral when the grant takes effect, they are afterwards discovered to be so. See California v. Deseret Water &c. Co. 243 U. S. 415. What has been said demonstrates that the school grant to Utah must be read in the light of the mining laws, the school land indemnity law and the settled public policy respecting mineral lands, and not as though it constituted the sole evidence of the legislative will. United States v. Barnes, 222 U. S. 513, 520. When it is so read it does not, in our opinion, disclose a purpose to include mineral lands. Although couched in general terms adequate to embrace such lands if there were no statute or settled policy to the contrary, it contains no language which explicitly or clearly withdraws the designated sections, where known to be mineral in character, from the operation of the mining" }, { "docid": "6532478", "title": "", "text": "school land indemnity law and the settled public policy respecting mineral lands, and not as though it constituted the sole evidence of the legislative will. United States v. Barnes, 222 U. S. 513, 520 [32 S. Ct. 117, 56 L. Ed. 291]. When it is so read it does not, in our opinion, disclose a purpose to include mineral lands. Although couched in general terms adequate to embrace such lands if there were no statute or settled policy to the contrary, it contains no language which explicitly or clearly withdraws the designated sections, where known to be mineral in character, from the operation of the mining laws, or which certainly shows that Congress intended to depart from its long prevailing policy of disposing of mineral lands only under laws specially including them. It therefore must be taken as neither curtailing those laws nor departing from that policy.” The lands in controversy are situated in sections 2 and 36 of respective townships and are therefore within the very language of the grant. In Work, Secretary of the Interior, v. Louisiana, 269 U. S. 250, 46 S. Ct. 92, 70 L. Ed. 259, the Supreme Court draws a distinction between the grants of the SwampLand Acts of 1849-50 (Rev. St. § 2479 et seq. [Comp. St. § 4958 et seq.]), and later-acts, holding that, at the time of the. enactment of the Swamp Land Acts the public poliey of holding mineral lands for disposition only under laws specially including them was not established, but reaffirms the general doctrine that there has been in more recent years an established public poliey of reserving mineral lands generally. The substance of the whole matter is that the government has had for years a Axed poliey of dealing with mineral lands in a different manner from other lands, and in a grant of government land to a state there is an implied reservation of mineral lands. It seems to us the Supreme Court in the case of United States v. Sweet, supra, has settled the. question that the grant to Utah, claimed to convey the land" }, { "docid": "23080052", "title": "", "text": "dealing with these mineral lands, the manner in which the question was suddenly forced upon them, the uniform reservation of them from survey, from sale, from preemption, and above all from grants, whether for railroads, public buildings, or other purposes, and looking to the fact that from all the grants made in this act they are reserved, one of which is for school purposes besides the sixteenth and thirty-sixth sections, we are forced to the conclusion that Congress did not intend to depart from its uniform policy in this, respect in the grant of those sections to the State. “It follows from the finding of the court and the undisputed facts of the case, that the land in controversy being mineral land, and well known to be so when the surveys of it were made, did not pass to the State under the school-section grant.” That ruling was reaffirmed and followed in Mullan v. United States, 118 U. S. 271, where valuable coal lands, known to be such, were held not to be open to selection by the State as indemnity school lands. The conditions ensuing from the discovery of gold and other minerals in the western States and Territories resulted in a general demand for a system of laws expressly opening the mineral lands to exploration, occupation and acquisition, and Congress, responding to this demand, adopted from 1864 to 1873 a series of acts dealing with practically every, phase of the subject and covering all classes of mineral lands, including coal lands. These acts, with some before noticed, were carried into a chapter of the Revised Statutes entitled “Minerals Lands and Mining Resources.” Taken collectively they constitute a special code upon that subject and show that they are intended not only to establish a particular mode of disposing of mineral lands, but also to .except and reserve them from all other grants and modes of disposal where there is no express provision for their inclusion. Thus the policy of disposing of mineral lands only under laws specially including them became even more firmly established than before, and this is" }, { "docid": "4290424", "title": "", "text": "hereafter be determined to bo mineral in character.” These applications were accompanied by affidavits that the applicants were well acquainted with the lands, and that they were nonmineral. The state board relied upon the truthfulness of the affidavits, and its president and secretary made affidavit that the board had caused said lands to be examined, and that they were nonmineral. The state board then filed these documents with the local register and receiver of the United States Land Office at Salt Lake City, who certified that the lands were not listed on the survey as mineral lands; whereupon all papers were forwarded to the Commissioner of the General Land Office at Washington, and in reliance thereon the lands were certified to the state of Utah between 1901 and 1904. The agreement of the Milners to purchase then attached, under which the Milners had ten years to pay the purchase price, $1.50 an acre. The purchasers then assigned to the Carbon County Land Company, a corporation in which Stanley B. Milner owned 99.95 per cent, of the stock.' These lands were in fact underlain with valuable coal deposits, and are mineral lands •within the statute. Mullan v. United States, 118 U. S. 271, 6 S. Ct. 1041, 30 L. Ed. 170. There was no exposure of commercially valuable coal on any subdivision of the lands selected; and until the decision in 1911 of’ United States v. Diamond Coal & Coke Company (C. C. A. 8) 191 F. 786, affirmed in 233 U. S. 236, 34 S. Ct. 507, 58 L. Ed. 936, many lawyers and some courts believed that such exposure was an essential to the listing of lands as mineral. A rule promulgated by the Commissioner of the General Land Office and decisions of the Land Office were to that effect. However, since the decision of the Diamond Coal & Coke Company Case, it is clear that the mineral character of land may be established by any satisfactory evidence, including geologic inference. The proof in the Milner Case, and in this case, leaves no doubt that the formation of the" }, { "docid": "4290422", "title": "", "text": "McDERMOTT, Circuit Judge. This is the fourth appearance in appellate courts of a controversy over 5,564.28 acres of coal land in Carbon county, Utah, the original litigation having been commenced on January 7, 1907. The earlier eases are Milner v. United States (C. C. A. 8) 228 F. 431, appeal dismissed, 248 U. S. 594, 39 S. Ct. 132, 63 L. Ed. 437; United States v. Carbon County Land Company (C. C. A. 8) 9 F.(2d) 517; certiorari granted and decision affirmed, Independent Coal & Coke Company et al. v. United States, 274 U. S. 640, 47 S. Ct. 714, 71 L. Ed. 1270. These opinions set out so fully the facts connected with the early history of the controversy that a sketch thereof will suffice for this opinion. In the Act of July 16, 1894 (28 Stat. 109), which provided for statehood for Utah, there is a floating grant to the state of many thousands of acres of unappropriated public lands. Provision was made for the selection, from time to time, of the lands so granted, but mineral lands were not subject to selection by the state, and were not included in the grant. Section 2318, Rev. Stat. (30 USCA § 21); Independent Coal & Coke Company v. United States, 274 U. S. 640, 642, 47 S. Ct. 714, 71 L. Ed. 1270; Milner v. United States (C. C. A.) 228 F. 431, 439; Mullan v. United States, 118 U. S. 271, 276, 6 S. Ct. 1041, 30 L. Ed. 170; United States v. Sweet, 245 U. S. 563, 38 S. Ct. 193, 62 L. Ed. 473. In 1896 the Legislature of Utah created a board of land commissioners and conferred upon it the control and management of such granted lands, and prescribed regulations for the selection and sale thereof. Laws of Utah 1896, e. 80. Pursuant thereto, and between 1900 and 1903, Stanley B. Milner and his relatives and associates applied to purchase the lands in controversy, describing them as “grazing lands” and agreeing to release the state from its obligation to sell “if the said land shall" }, { "docid": "14720974", "title": "", "text": "Ed. 700; United States v. St. Paul, M. & M. Co., 247 U. S. 310, 318, 38 S. Ct. 525, 62 L. Ed. 1130; and United States v. Forty Barrels and Twenty Kegs of Coca-Cola Co., 241 U. S. 265, 281-283, 36 S. Ct. 573, 60 L. Ed. 995. Appellant relies on the rule that general words may be restrained by particular words —ejusdem generis — to sustain the first count. The functions and limitations of that rule are stated in Danciger v. Cooley, 248 U. S. 319, 326, 39 S. Ct. 119, 63 L. Ed. 266; Cutler v. Kouns, 110 U. S. 720, 728, 4 S. Ct. 274, 28 L. Ed. 305; Mason v. United States, 260 U. S. 545, 554, 43. S. Ct. 200, 67 L. Ed. 396; and Webber v. Chicago, 148 Ill. 313, 36 N. E. 70. But again, immediately following the mineral reservation clause in said aet (section 9) is this: “The coal and other mineral de posits in such lands shall he subject to disposal by the United States in accordance with the provisions of the coal and mineral land laws in force at the time of such disposal.” We can conceive of no reason or purpose for including in that sentence the words “and other mineral” and “and mineral” had it been the intention to reserve only coal and the like, — noseitur a soeiis. Had that been the purpose the sentence would have appropriately read: The coal deposits in such lands shall be subject to disposal by the United States in accordance with the provisions of the coal land laws in force at the time of such disposal. In our opinion all mineral in the 640 acres was reserved to the United States. As to plaintiffs claim of preferential right to the permit and lease, — the Secretary of the Interior has uniformly held that section 20 of the leasing Act of February 25, 1920 was intended to serve a special purpose; that it is a relief section and was based upon claimed- equities of those who had gone upon the publie" }, { "docid": "6532477", "title": "", "text": "563, 38 S. Ct. 193, 62 L. Ed. 473, where the very section involved here of the Utah Enabling Act was construed, and ‘t was held that the school section grant to the state of Utah thereby was not intended to embrace land known to be valuable for mineral at the time of the admission of the state, and the court says (567, 571, 572 [38 S. Ct. 193]): “In the legislation concerning the public lands it has been the practice of Congress to make a distinction between mineral lands and other lands, to deal with them along different lines, and to withhold mineral lands from disposal save under laws specially including them. * * * And while the mineral land laws are not applicable to all the public land states, some being specially excepted, there has been no time since their enactment when they were not applicable to Utah. * * * What has been said demonstrates that the school grant to Utah must be read in the light of the mining laws, the school land indemnity law and the settled public policy respecting mineral lands, and not as though it constituted the sole evidence of the legislative will. United States v. Barnes, 222 U. S. 513, 520 [32 S. Ct. 117, 56 L. Ed. 291]. When it is so read it does not, in our opinion, disclose a purpose to include mineral lands. Although couched in general terms adequate to embrace such lands if there were no statute or settled policy to the contrary, it contains no language which explicitly or clearly withdraws the designated sections, where known to be mineral in character, from the operation of the mining laws, or which certainly shows that Congress intended to depart from its long prevailing policy of disposing of mineral lands only under laws specially including them. It therefore must be taken as neither curtailing those laws nor departing from that policy.” The lands in controversy are situated in sections 2 and 36 of respective townships and are therefore within the very language of the grant. In Work, Secretary of" }, { "docid": "17748298", "title": "", "text": "v. Consolidated Mining Co., 102 U. S. 167 — followed in Mullan v. United States, 118 U. S. 271— and United States v. Sweet, 245 U. S. 563. In the Mining Co.. Case, in which it was held that a provision in the Act of 1853 for the sale of public lands in California, granting certain sections to the State for school purposes, was not intended tot, cover mineral lands, the decision was not based upon the ground that there was at that time any settled and general policy of reserving mineral lands, but, on the contrary, -on the ground that the discovery in 1849 that California was rich in precious metals, bring- . ing its mineral lands to the attention of Congress, had led to the adoption in reference to that State of a local policy, plainly manifested in other provisions of the Act making specific exceptions of mineral lands, by which, unlike the ordinary laws for disposing of public lands in agricultural States, the mineral lands in that State were uniformly reserved from sale, preemption and grants for public purposes (pp. 172-175); In the Sweet Case it was held that the provision of the Utah Enabling Act of 1894, granting to the State certain sections of the public lands for the support of common schools, with no mention of mineral lands, was not intended to embrace land known to be valuable for coal. The grounds of this decision were that long prior to the Act there had been established a settled policy in respect of mineral lands, evidenced by the mining laws and other statutes, by which they were withheld from disposal save under laws especially including them; and that read in the light of such laws and settled public policy the Act did not disclose' a purpose to include such lands in the school grant, since, although couched in general terms adequate to embrace them if there were no statute or settled policy to the contrary, it contained no language explicitly withdrawing the school sections, where known to be mineral in character, from the operation of the" }, { "docid": "23080046", "title": "", "text": "Mr. Justice Van Devanter delivered the opinion of the court. This is a suit by the United States to quiet the title to section 32 of a designated township in Carbon County, Utah, the suit being specially directed against a claim asserted by the defendant, as an assignee of the State, under 'the school land grant to the latter. Whether this tract passed to the State .under that grant or was reserved to the United States as mineral land is the matter in controversy. In the District Court the United States prevailed as to all but 40 acres, but in the Circuit Court of Appeals that decree was reversed and one for the defendant was directed. 228 Fed. Rep. 421. The evidence shows that the entire section, excepting 40 acres, is valuable for coal and has been known to be so since before Utah became a State. Land valuable for coal is mineral land within the meaning-of the public land laws. Thus the ultimate question for decision is whether the school land grant to Utah embraces mineral land. The grant is found in § 6 of the Act of Congress of July .16, 1894, c. 138, 28 Stat. 107, and is copied in the margin with another closely related section of the same act. It neither expressly includes mineral lands nor expressly excludes them. If it did either, it would be conclusive of the will of Congress upon the point. But, as it makes no mention of such lands, it is permissible — indeed, is essential — to inquire whether the congressional will is otherwise made manifest, that is to say, whether the general words of the grant are to be read in the light of other statutes and a settled public policy in respect of mineral lands. In the legislation concerning the public lands it has been the practice of Congress to make a distinction between mineral lands and other lands, to deal with them along different lines, and to withhold mineral lands, from disposal save under laws specially including them. This practice began with the ordinance of May" }, { "docid": "6532479", "title": "", "text": "the Interior, v. Louisiana, 269 U. S. 250, 46 S. Ct. 92, 70 L. Ed. 259, the Supreme Court draws a distinction between the grants of the SwampLand Acts of 1849-50 (Rev. St. § 2479 et seq. [Comp. St. § 4958 et seq.]), and later-acts, holding that, at the time of the. enactment of the Swamp Land Acts the public poliey of holding mineral lands for disposition only under laws specially including them was not established, but reaffirms the general doctrine that there has been in more recent years an established public poliey of reserving mineral lands generally. The substance of the whole matter is that the government has had for years a Axed poliey of dealing with mineral lands in a different manner from other lands, and in a grant of government land to a state there is an implied reservation of mineral lands. It seems to us the Supreme Court in the case of United States v. Sweet, supra, has settled the. question that the grant to Utah, claimed to convey the land in question here, does not include mineral lands. While coal is the mineral considered in the Sweet Case, the general doctrine as to exclusion of mineral lands from the grant is clearly announced. This ease would therefore seem to be reduced to the question as to whether or not these lands were mineral lands. Was the court’s conclusion that these lands were mineral lands justified from the findings of fact? The court’s finding on this was: “(6) That prior to the time of the admission of the state of Utah into the Union the lands above described were vacant, unreserved, and unappropriated lands, rough, broken, and mountainous in character, and of no value for agricultural purposes, and of slight, if any, utility for grazing purposes; that said lands above described did not, at the time of the admission of Utah into the Union or at any time since or now, contain any gold, silver, lead, or other precious metals ; that, outside of and except for the lime-rock contained upon said land there was and" }, { "docid": "16990223", "title": "", "text": "the pre-emptioner or homesteader, if he is possessed of the necessary qualifications and has fully complied with the preemption or homestead laws, as the case may be, at the time of his cash entry, is entitled to the land. The general rule is well settled that the right to a patent, once vested, is treated by the government, in dealing with the public lands, as equivalent to a patent issued, and, when the patent does issue, it relates back to the inception of the right of the patentee. Carroll v. Safford, 3 How. 441, 11 L. Ed. 671; U. S. v. Hughes, 11 How. 552, 568, 13 L. Ed. 809; French v. Spencer, 21 How. 228, 19 E. Ed. 97; Hughes v. U. S., 4 Wall. 232, 18 L. Ed. 303; Stark v Starrs, 6 Wall. 402, 414, 18 L. Ed. 925; Wirth v. Branson, 98 U. S. 118, 121, 25 L. Ed. 86; Simmons v. Wagner, 101 U. S. 260, 261, 25 L. Ed. 910; Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423; Davis v. Wiebbold, 139 U. S. 507, 528, 11 Sup. Ct. 628, 35 L. Ed. 238; Hedrick v. Railroad Co., 167 U. S. 673, 679, 17 Sup. Ct. 922, 42 L. Ed. 320. The commissioner of the general land office has authority to make regulations respecting the disposal of the public lands, and such regulations, when not repugnant to the acts of congress, have the force and effect of laws. The regulations of the commissioner relative to lieu land • selections tinder the act of June 4, 1897 (prescribed June 30, 1897), are, in our .opinion, reasonable, and evidently were intended and are well calculated to carry into effect the intent and true .meaning of the act of congress. They are properly within the limitations of the law for the enforcement of which they were promulgated, and should be complied with. Anchor v. Howe (C. C.) 50 Fed. 366; Iron Co. v. James, 32 C. C. A. 348, 89 Fed. 811, 814; Hoover v. Sailing (C. C.) 102 Fed." }, { "docid": "23080051", "title": "", "text": "in their nature — the first in enlarged terms as § 2318, and the other as § 2346. By the Act of March 3, 1853, c. 145, 10 Stat. 244, Congress granted to the State of California sections 16 and 36 in each township for school purposes and large quantities of lands for other purposes. Mineral lands were neither expressly excepted from nor expressly included in the grant of the school sections, but were specially excepted from, the other grants. This difference led to a controversy over the true meaning of the school grant, the state authorities taking the view that it did, and the land officers of the United States that it did not, include mineral lands. Ultimately the controversy came before this court in Mining Co. v. Consolidated Mining Co., 102 U. S. 167, and the position taken by the land officers of the United States was sustained, the court saying, p. 174: “Taking into consideration what is well known to have been the hesitation and difficulty in the minds of Congressmen in dealing with these mineral lands, the manner in which the question was suddenly forced upon them, the uniform reservation of them from survey, from sale, from preemption, and above all from grants, whether for railroads, public buildings, or other purposes, and looking to the fact that from all the grants made in this act they are reserved, one of which is for school purposes besides the sixteenth and thirty-sixth sections, we are forced to the conclusion that Congress did not intend to depart from its uniform policy in this, respect in the grant of those sections to the State. “It follows from the finding of the court and the undisputed facts of the case, that the land in controversy being mineral land, and well known to be so when the surveys of it were made, did not pass to the State under the school-section grant.” That ruling was reaffirmed and followed in Mullan v. United States, 118 U. S. 271, where valuable coal lands, known to be such, were held not to be open to" } ]

[ { "docid": "17529033", "title": "", "text": "and a contractor suffers damages as a result of such action, we think that defendant is liable. On June 11, 1954, the Armed Services Board of Contract Appeals dismissed plaintiff’s appeal from the adverse decision of the contracting officer. The decision was based on a rigid application of the Blair decision. Thus the Board decision was purely on a question of law and offers no barrier of finality under the disputes clause. Time and events have somewhat eroded the much-maligned doctrine of United States v. Rice, 317 U.S. 61 (1942), but even granting its continued health and vitality its restriction of a contractor to a mere time extension as full contract payment for the financial consequences of reasonable delay flowing from a change order does not apply to preclude monetary damages for that part of a delay found to be unreasonable. In failing to expeditiously order the plaintiff to change the surface texture, in failing to instruct the plaintiff as to precisely what it wanted, and in its dilatory and inconclusive inspection and approval procedures as described in the findings, the Government exceeded reason and brought itself within the scope of F. H. McGraw & Co. v. United States, 131 Ct. Cl. 501, 506, 130 F. Supp. 394, 397 (1955) : * * * It is settled that the defendant is allowed under the contract only a reasonable time within which to make permitted changes in the specifications' and that the defendant is liable for breach of its contract if it unreasonably delays or disrupts the contractor’s work. The final issue is whether the increased latex costs which the plaintiff seeks as a measure of his damages were the proximate result of the defendant’s breach, or were consequential to the Korean war and thus not recoverable under one way of construing Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1854), and Ramsey v. United States, 121 Ct. Cl. 426, 101 F. Supp. 353 (1951), cert. denied, 343 U.S. 977 (1952). Had the Korean war not occurred and general conditions affecting the price of latex remained normal, it is" } ]

[ { "docid": "17339858", "title": "", "text": "High Plains’s continued viability only if there were no loan guarantee and no additional $5,000,000 financing. The report did not evaluate the company’s financial situation if Wells Fargo provided that additional financing, as it did. With regard to the company’s alleged management problems, the Administration had been aware of nearly all of them for a long time, and until the final decision letter, did not raise them as problems during the discussions about the company’s viability. Several of the items had occurred prior to the Intercreditor Agreement and the issuance of a new Conditional Commitment with Wells Fargo as the lead lender, apparently on the assumption that the loan guarantee process was proceeding as planned. Indeed, despite the supposedly significant management problems, shortly before the Administration’s refusal to issue the guarantee the Administration’s administrator wrote a member of the House of Representatives that the process was “culminating in the granting of the guarantee.” We agree with the Court of Federal Claims that “[t]he evidence offered by the [Administration] in the December 19th letter to support their allegation of poor management by High Plains does not support a finding that an adverse change had taken place.” Wells Fargo Bank, N.A., 26 Cl.Ct. at 816-17. III. “The general rule in common law breach of contract cases is to award damages that will place the injured party in as good a position as he or she would have been in had the breaching party fully performed.” Estate of Berg v. United States, 231 Ct.Cl. 466, 687 F.2d 377, 379 (1982); Northern Helex Co. v. United States, 207 Ct.Cl. 862, 524 F.2d 707, 713, 720 (1975), cert. denied, 429 U.S. 866, 97 S.Ct. 176, 50 L.Ed.2d 146 (1976). However, “remote and consequential damages are not recoverable in a common-law suit for breach of contract ____ especially ... in suits against the United States for the recovery of common-law damages, such as the instant case.” Northern Helex Co., 524 F.2d at 720. Moreover, attempting to determine what would have happened if the guarantee had been issued necessarily involves a highly speculative and conjectural inquiry. The" }, { "docid": "17339863", "title": "", "text": "358 (1989) (citing Court of Claims eases denying lost profits damages). Of course, not every injury resulting from a breach of contract is remediable in damages. Globe Ref. Co. v. Landa Cotton Oil Co., 190 U.S. 540, 23 S.Ct. 754, 47 L.Ed. 1171 (1903). In Ramsey v. United States, 121 Ct.Cl. 426, 101 F.Supp. 353 (1951), cert. denied, 343 U.S. 977, 72 S.Ct. 1072, 96 L.Ed. 1369 (1952), where the government delayed payment on contracts with the plaintiff, the court, in denying lost profits damages, stated: The profits lost from the corporation’s over-all business activities, because of its shortage of capital allegedly occasioned by the Government’s failure to pay the contract amounts when due, may not be recovered either. It is important to bear in mind that the corporation’s claim is not for the anticipated profits of the contracts in question, but is a claim for the anticipated profits of its entire business enterprise. The lost profits of these collateral undertakings, which the corporation was unable to carry out, are too remote to be classified as a natural result of the Government’s delay in payment...-. “[T]here is a distinction by which all question[s] of this sort can be easily tested. If the profits are such as would have accrued and grown out of the contract itself, as the direct and immediate results of its fulfillment, then they would form a just and proper item of damages, to be recovered against the delinquent party upon a breach of the agree-ment____ But if they are such as would have been realized by the party from other independent and collateral undertakings, although entered into in consequence and on the faith of the principal contract, then they are too uncertain and remote to be taken into consideration as a part of the damages occasioned by the breach of the contract in suit.” Id. 101 F.Supp. at 357-58 (quoting Myerle v. United States, 33 Ct.Cl. 1, 26 (1897)). This reasoning is equally applicable to the present case. Here the Court of Federal Claims awarded damages for the profits Wells Fargo allegedly would have made on" }, { "docid": "21643041", "title": "", "text": "6-8. BPA asserts that damages must be a direct result of a given breach in order for a plaintiff to recover. SCE counters by arguing that (1) BPA did breach the contract in 2000, (2) BPA’s actions constituted a continuing pattern of concealment and misrepresentation that directly caused SCE’s injuries, and (3) damages do not have to follow a breach immediately to be recoverable. As a matter of law, BPA is correct that some consequential damages may be too remote to be recovered. See generally 24 Richard A. Lord, Williston on Contracts §§ 64:12, 64:13, 66:57 4th ed. (2002). See also Northern Helex Co. v. United States, 207 Ct.Cl. 862, 524 F.2d 707, 720 (1975) (“ ‘In actions for breach of contract the damages are ordinarily limited to the natural and probable consequences of the breach complained of.’ ”) (quoting Ramsey v. United States, 121 Ct.Cl. 426, 101 F.Supp. 353, 357 (1951)); Wells Fargo Bank, N.A. v. United States, 88 F.3d 1012, 1021 (Fed.Cir.1996) (“ ‘[R]emote and consequential damages are not recoverable in a common-law suit for breach of contract ... especially ... in suits against the United States for the recovery of common-law damages’ ”) (quoting Northern Helex, 524 F.2d at 720). General damages may be recovered upon a showing that the plaintiffs injury was directly caused by the defendant’s breach. 24 Williston on Contracts, §§ 64:1, 64:8, 64:12. SCE notes that courts have allowed recovery even in the face of a long temporal gap between breach and injury. Opp. at 28-31 (referring to Beverly v. National Flood Insurers Assoc., 702 F.2d 931 (11th Cir.1983), and Hughes Communications Galaxy Inc. v. United States, 271 F.3d 1060,1066 (Fed.Cir.2001)). SCE has alleged that its injuries were caused “[a]s a proximate result of the actions of BPA.” Compl. ¶¶ 51, 64. In the context of a motion to dismiss, this is adequate. See San Carlos Irrigation and Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed.Cir. 1989) (“Because the [plaintiff] alleged that the government has breached certain contractual duties and that damages occurred as a result of those breaches, the [plaintiff]" }, { "docid": "23694446", "title": "", "text": "to it. “Receipt or non-receipt of future contracts is both speculative in nature and dependent on many factors not related to bonding.” Olin Jones, 225 Ct.Cl. at 744. Moreover, there is no suggestion that the parties could have contemplated such losses at the time they entered into the contract. See Northern Helex Co. v. United States, 207 Ct.Cl. 862, 524 F.2d 707, 714 (1975), cert, denied, 429 U.S. 866, 97 S.Ct. 176, 50 L.Ed.2d 146 (1976). The court finds that the injury claimed is too remote, consequential, and speculative to permit recovery as a matter of law, Rhen v. United States, 17 Cl.Ct. at 143-44, and is denied. The damage to reputation claim is denied and dismissed. 17. Legal and Related Fees Plaintiff made a claim for legal fees arising out of this dispute: For defending subcontractor and supplier lawsuits; for its surety’s legal and consultant expenses; and for legal fees incurred in this litigation, and costs. Attorney’s fees can be awarded to a plaintiff only in situations allowed by the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (1985). Congress has limited such awards under § 2412(d)(1)(A) to situations where, after litigation is concluded, and plaintiff is the “prevailing party,” the court can find that the litigation position of defendant “was not substantially justified.” See TGS Int’l, Inc. v. United States, 983 F.2d 229 (Fed.Cir.1993). Without making findings or passing on the propriety of any of the claimed fees, the court notes that this claim is premature. Plaintiffs entitlement to legal fees and costs may be addressed another day. See also Texas Instruments, Inc. v. United States, 991 F.2d 760 (Fed.Cir.1993) for a discussion of legal fees arising from actions before administrative agencies pursuant to 5 U.S.C. § 504. 18. Consultants’ Fees Plaintiff requested an equitable adjustment for consultant’s fees pursuant to General Provision 10 of the contract. It argued that reimbursement for “certain uses of consultants during construction [is] allowable.” Plaintiff also claimed unidentified consulting costs for claim preparation and litigation based upon the alleged “grievous, willful acts of [the contracting officer,]” and the expense of paying" }, { "docid": "13543905", "title": "", "text": "Fargo Bank, N.A v. United States, 88 F.3d 1012, 1021 (Fed.Cir.1996), quoting Northern Helex Co. v. United States, 524 F.2d 707, 720, 207 Ct.Cl. 862, 886 (1975) (alterations in original). The United States, however, implicitly admits that lost profits are available when the Plaintiff overcomes a “difficult burden.” Defendant’s Amended Proposed Findings of Fact and Conclusions of Law, filed October 19, 1999, page 58. The restriction to not award “remote and consequential damages” from Wells Fargo does not prevent an award of lost profits to Energy Capital here. “Wells Fargo stands for the unremarkable proposition that gains which do not flow proximately out of the undertaking of the contract itself are too speculative.” LaSalle, 45 Fed.Cl. at 88. Energy Capital’s claim for lost profits are the profits that it would have made from the loans that are expressly the purpose of the AHELP Agreement. Energy Capital’s claim, therefore, is analogous to the Plaintiffs’ claims in LaSalle and Glendale v. United States, 43 Fed.Cl. 390, 397-98 (1999), where those Plaintiffs sought lost profits that “arise from the very subject of the breached portion of the contract.” LaSalle, 45 Fed.Cl. at 88. Therefore, since awarding lost profits against the United States in the context of a new venture is not precluded by the cases cited by the Defendant, the Court returns to the issues: whether Energy Capital has established causation, foreseeability and reasonable certainty. VI. Causation and Foreseeability A. Causation 1. Law “Because often many factors combine to produce the result complained of, the causation prong requires the injured party to demonstrate that ‘the defendant’s breach was a “substantial factor” in causing the injury.’ ” California Federal Bank v. United States, 43 Fed.Cl. 445, 451 (1999) (quoting 5 Arthur L. Corbin, Corbin on Contracts § 999 at 25 (1964)). Citing Ramsey v. United States, 101 F.Supp. 353, 357, 121 Ct.Cl. 426, 433 (1951), the Defendant argues for a more strict test for causation. The Defendant proposes that “the cause must produce the effect inevitably and naturally, not possibly nor even probably.” Id. The Court holds that Ramsey restricts damages only in those" }, { "docid": "9481848", "title": "", "text": "Second, the Complaint prays for compensation for the purchase price of the vessel and for the cost of its refurbishment. Third, the plaintiffs ask for reimbursement for the overhead costs of running a legitimate commercial shipping firm as a front or facade, such as fuel, crew wages, broker’s fees, travel, and telephone expenses. Finally, the plaintiffs request reimbursement for the overhead costs of running the ship as a part of a sting operation, even though the El Frio never actually conducted any covert smuggling voyages. The Court of Federal Claims only has jurisdiction over actual contracts, whether express or implied in fact, but not over contracts implied in law. Alabama v. United States, 282 U.S. 502, 507, 51 S.Ct. 225, 226-27, 75 L.Ed. 492 (1931); Hatzlachh Supply Co. v. United States, 7 Cl.Ct. 743, 748 (1985). To establish the existence of a contract, whether express or implied-in-fact, plaintiffs must show: (1) that there was an unambiguous offer to contract, upon specific terms; (2) that there was an unambiguous acceptance of that offer; (3) that both parties intended to enter into a contract, often called mutuality of intent; and (4) that the United States received consideration. See City of El Centro v. United States, 922 F.2d 816, 820 (Fed.Cir.1990), cert. denied, 501 U.S. 1230, 111 S.Ct. 2851, 115 L.Ed.2d 1019 (1991); Fincke v. United States, 230 Ct.Cl. 233, 243-44, 675 F.2d 289, 295 (1982); Russell Corp. v. United States, 210 Ct.Cl. 596, 608-09, 537 F.2d 474, 482 (1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 811, 50 L.Ed.2d 791 (1977); Kentucky v. United States, 27 Fed.Cl. 173, 176 (1992); Delco Elec. Corp. v. United States, 12 Cl.Ct. 367 (1987), aff'd, 909 F.2d 1495 (Fed.Cir.1990); Shaw v. United States, 8 Cl.Ct. 796, 799 (1985). Also, when the United States is a party, an additional requirement is added: the Government official, whose words or conduct are relied upon, must have actual authority to bind the Government in contract. Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947); City of El Centro, 922 F.2d at" }, { "docid": "23000366", "title": "", "text": "of common-law damages, such as the instant case. See Ramsey v. United States, 121 Ct. Cl. 426, 101 F. Supp. 353 (1951), cert. denied, 343 U.S. 977 (1952); Dale Constr. Co. v. United States, 168 Ct. Cl. 692, 788 (1964); Specialty Assembling & Packing Co. v. United States, 174 Ct. Cl. 153, 175, 355 F. 2d 554, 567-68 (1966); William Green Constr. Co. v. United States, 201 Ct. Cl. 616, 626-27, 477 F. 2d 930, 936-37 (1973), cert. denied, 417 U.S. 909 (1974). In the William Green Constr. Co. case we said: * * * And even in a common-law suit there would be no recovery for general loss of business, the claimed loss of the entire Green net worth, and losses on the non-federal work — such damages are all deemed too remote and consequential. See Ramsey v. United States, 121 Ct. Cl. 426, 433-35, 101 F. Supp. 353, 357-58 (1951), cert. denied, 343 U.S. 977 (1952); Dale Constr. Co. v. United States, 168 Ct. Cl. 692, 738 (1964); Specialty Assembling & Packing Co. v. United States, 174 Ct. Cl. 153, 175, 355 F. 2d 554, 567-68 (1966). In Ramsey v. United States, supra, we held: Plaintiffs allege that the Government’s failure to pay the money promptly was the immediate cause of the corporation’s financial difficulties which resulted in a reorganization under the Bankruptcy Act. In actions for breach of contract the damages are ordinarily limited to the natural and probable consequences of the breach complained of, and the damages remotely or consequently resulting from the breach are not allowed. * * * ***** The profits lost from the corporation’s over-all business activities, because of its shortage of capital allegedly occasioned by the Government’s failure to pay the contract amounts when due, may not be recovered either. It is important to bear in mind that the corporation’s claim is not for the anticipated profits of the contracts in question, but is a claim for the anticipated profits of its entire business enterprise. The lost profits of these collateral undertakings, which the corporation was unable to carry out, are too" }, { "docid": "14623107", "title": "", "text": "not the result of any intervening incident. See id. Stated more particularly, “ ‘the cause must produce the effect inevitably and naturally, not possibly nor even probably.’ ” Id. (quoting Myerle v. United States, 33 Ct.Cl. 1 (1897)). Plaintiff bears the burden to establish clear proof that it was injured as a direct result of defendant’s alleged breach. Boyajian v. United States, 191 Ct.Cl. 233, 423 F.2d 1231, 1235 (1970); see also Assurance Co. v. United States, 813 F.2d 1202, 1205 (Fed.Cir. 1987) (noting that the burden of proof is upon the plaintiff in such cases). Furthermore, it is well-settled that defendant will be liable only for damages that were foreseeable at the time the contract was made. Northern Helex Co. v. United States, 207 Ct.Cl. 862, 524 F.2d 707, 714 (1975), cert, denied. 429 U.S. 866, 97 S.Ct. 176, 50 L.Ed.2d 146 (1976); see also CCM Cory. v. United States, 15 Cl.Ct. 670, 671 (1988) (stating that a plaintiff, in order to recover damages, must show that such damages were reasonably foreseeable and contemplated by the parties when they entered into the contract). In the present action, plaintiff has failed to demonstrate that its claimed damages for the market value of its filtered FBS were the direct result of defendant’s alleged breach. In that regard, this court reiterates that, at the time of the termination of the OSI Program, no U.S. importer held a valid import permit naming plaintiff as an FBS supplier. Thus, even if defendant breached an alleged contract with plaintiff, such breach did not cause plaintiff’s claimed damages. As defendant notes, such an alleged breach, “[a]t best, ... ‘caused’ [plaintiff’s] inability to export its FBS to the United States through the OSI Program.” Plaintiff, however, has not shown that it could have found a U.S. importer to purchase its FBS even had the OSI Program not been terminated. Absent such a buyer, plaintiff would have suffered the same loss that it claims arose from defendant’s alleged breach. Moreover, exhibits introduced at trial indicated, and testimony given at trial confirmed, that plaintiff continued to collect blood from" }, { "docid": "13543904", "title": "", "text": "cases show an absence of proof. See Northern Paiute Nation v. United States, 9 Cl.Ct. 639, 646 (1986) (stating “the problem of speculation is insurmountable”); L’Enfant Plaza Properties, Inc. v. United States, 3 Cl.Ct. 582, 590-91 (1983) (describing problems of establishing whether the Plaintiff would have earned any profits). White Mountain Apache Tribe of Arizona v. United States, 10 Cl.Ct. 115, 118 (1986), follows the approach taken by Neely, but Neely, as explained above, does not prohibit the recovery of lost profits absolutely. In addition to its argument about the incompatibility of lost profits and new ventures, the Defendant also contends that lost profits are particularly limited against the United States. Because Energy Capital, before closing any loan, would have to engage in transactions with other parties (Fannie Mae, property owners, first mortgagees, etc.), the United States characterizes lost profits as a type of “remote and consequential damage.” “ ‘[Rjemote and consequential damages are not recoverable in a common-law suit for breach of contract ... especially ... in suits against the United States.’ ” Wells Fargo Bank, N.A v. United States, 88 F.3d 1012, 1021 (Fed.Cir.1996), quoting Northern Helex Co. v. United States, 524 F.2d 707, 720, 207 Ct.Cl. 862, 886 (1975) (alterations in original). The United States, however, implicitly admits that lost profits are available when the Plaintiff overcomes a “difficult burden.” Defendant’s Amended Proposed Findings of Fact and Conclusions of Law, filed October 19, 1999, page 58. The restriction to not award “remote and consequential damages” from Wells Fargo does not prevent an award of lost profits to Energy Capital here. “Wells Fargo stands for the unremarkable proposition that gains which do not flow proximately out of the undertaking of the contract itself are too speculative.” LaSalle, 45 Fed.Cl. at 88. Energy Capital’s claim for lost profits are the profits that it would have made from the loans that are expressly the purpose of the AHELP Agreement. Energy Capital’s claim, therefore, is analogous to the Plaintiffs’ claims in LaSalle and Glendale v. United States, 43 Fed.Cl. 390, 397-98 (1999), where those Plaintiffs sought lost profits that “arise from" }, { "docid": "14623106", "title": "", "text": "can be broken down into several particulars. First, plaintiff asserts that its inventory of FBS, worth an estimated $2,964,926.25 had no commercial value or market outside the United States after the termination of the OSI Program. Next, plaintiff claims that it expended $805,-514 in improving its laboratory facilities between November 1989, when plaintiff claims defendant should have given notice of termination of the Cooperative Agreement, and October 30, 1990, when plaintiff received such notice. Plaintiff alleges that it would not have expended this amount but for the contract with defendant. Finally, plaintiff alleges that it suffered other damages, including finance charges of $80,181 on the improvements and $43,472 in warehouse storage penalties, as a result of defendant’s alleged breach. A plaintiff’s damages in an action for a breach of contract are generally limited to the “natural and probable consequences of the breach complained of.” Ramsey v. United States, 121 Ct.Cl. 426, 101 F.Supp. 353, 357 (1951), cert, denied, 343 U.S. 977, 72 S.Ct. 1072, 96 L.Ed. 1369 (1952). Further, the damages must be direct and not the result of any intervening incident. See id. Stated more particularly, “ ‘the cause must produce the effect inevitably and naturally, not possibly nor even probably.’ ” Id. (quoting Myerle v. United States, 33 Ct.Cl. 1 (1897)). Plaintiff bears the burden to establish clear proof that it was injured as a direct result of defendant’s alleged breach. Boyajian v. United States, 191 Ct.Cl. 233, 423 F.2d 1231, 1235 (1970); see also Assurance Co. v. United States, 813 F.2d 1202, 1205 (Fed.Cir. 1987) (noting that the burden of proof is upon the plaintiff in such cases). Furthermore, it is well-settled that defendant will be liable only for damages that were foreseeable at the time the contract was made. Northern Helex Co. v. United States, 207 Ct.Cl. 862, 524 F.2d 707, 714 (1975), cert, denied. 429 U.S. 866, 97 S.Ct. 176, 50 L.Ed.2d 146 (1976); see also CCM Cory. v. United States, 15 Cl.Ct. 670, 671 (1988) (stating that a plaintiff, in order to recover damages, must show that such damages were reasonably foreseeable and contemplated" }, { "docid": "21643040", "title": "", "text": "See Veit, 56 Fed.Cl. at 35. The PNW Coordination Agreement exists and is implemented independently of this Contract, and the actual year-by-year results of the PNW Coordination Agreement planning process are not now before the Court. Assuming, solely for purposes of the pending motion, that there is a clear-cut annual determination of sufficiency or insufficiency under the process, the Court interprets the Contract to provide that the conversion from sales mode to exchange mode was mandatory when an insufficiency was forecast. Thus, SCE’s allegations that BPA failed to convert when required to do so are adequate to state a claim for breach of the Contract. However, due to the latent ambiguity about the PNW Coordination Agreement planning process and its results, the Court withholds making any further determination regarding these aspects of the Contract until a factual record becomes available. (b). Damages, causation, and foreseeability. BPA points out that although most of the alleged breaches occurred in the 1990s, the damages that SCE is claiming were incurred in 2000. Motion at 16-25; Reply at 2-3, 6-8. BPA asserts that damages must be a direct result of a given breach in order for a plaintiff to recover. SCE counters by arguing that (1) BPA did breach the contract in 2000, (2) BPA’s actions constituted a continuing pattern of concealment and misrepresentation that directly caused SCE’s injuries, and (3) damages do not have to follow a breach immediately to be recoverable. As a matter of law, BPA is correct that some consequential damages may be too remote to be recovered. See generally 24 Richard A. Lord, Williston on Contracts §§ 64:12, 64:13, 66:57 4th ed. (2002). See also Northern Helex Co. v. United States, 207 Ct.Cl. 862, 524 F.2d 707, 720 (1975) (“ ‘In actions for breach of contract the damages are ordinarily limited to the natural and probable consequences of the breach complained of.’ ”) (quoting Ramsey v. United States, 121 Ct.Cl. 426, 101 F.Supp. 353, 357 (1951)); Wells Fargo Bank, N.A. v. United States, 88 F.3d 1012, 1021 (Fed.Cir.1996) (“ ‘[R]emote and consequential damages are not recoverable in a common-law" }, { "docid": "23694444", "title": "", "text": "that the alleged breach is also tortious does not foreclose Tucker Act jurisdiction.” Id. at 761. Insofar as plaintiff’s references to defendant’s alleged misrepresentations are merely another way of asserting that a breach of contract occurred, the ... claim is not barred simply because it might also be stated as a tort. However, damages arising from defendant’s alleged breach must still be limited to compensation for those injuries directly related to completion of the contract in question, as opposed to any remote or speculative effects the misrepresentations might have had on obtaining bonding for other contracts. The damages must be proper contract damages. Id. 225 Ct.Cl. at 745 (citations and footnote omitted). Under the reasoning of Olin Jones, plaintiffs claim for damage to reputation must be denied because it lacks the required direct nexus to the Tucker Act, 28 U.S.C. § 1491, granting this court jurisdiction. Olin Jones is also distinguishable in that here defendant’s statements to F & D were not false, and F & D did not refuse, but perhaps once, to bond plaintiff. According to several persuasive opinions of this court, the claim is also “consequential” in nature and thus not recoverable under a contract theory. The determination of whether damages are consequential turns on whether the plaintiff’s damages were the natural and probable consequences of an alleged breach of contract. See Gardner Displays Co. v. United States, 171 Ct.Cl. 497, 346 F.2d 585, 589 (1965); Ramsey v. United States, 121 Ct. Cl. 426, 101 F.Supp. 353, 357 (1951), cert, denied, 343 U.S. 977, 72 S.Ct. 1072, 96 L.Ed. 1369 (1952). If plaintiff had offered a preponderance of credible proof that defendant tortiously breached its contract, it might have recovered the damages sought; but it did not. The failure to receive future contracts was consequential. Moreover, the court is not unmindful of plaintiff’s assertions that it continued to receive contracts following the termination for default and that after its full bonding was reinstated in 1987 it did extremely well. There is no assurance that plaintiff would have been awarded any contracts in question had bonding been available" }, { "docid": "17730118", "title": "", "text": "it may recover those losses (less any amounts that defendant can prove plaintiff saved as a result of the breach). Westfed bears the burden of proving that its reliance on defendant’s promises, and the breach of those promises, caused the losses. 1. Applicable Test Defendant argues that plaintiff must show that its losses were caused “inevitably and naturally” by the breach. Defendant’s Opposition to the Motion of Westfed Holdings, Inc. for Partial Summary Judgment on the Issue of Causation (Def.’s Causation MSJ Opp.) at 9-10. Westfed argues that it need only show that the breach was a “substantial factor” in causing the losses. Westfed Damages Reply at 16. This court has held that the “substantial factor” test governs the recovery of lost profits damages, see Coast, 48 Fed.Cl. at 434-35 & n. 29; Energy Capital Corp. v. United States, 47 Fed.Cl. 382, 395 (2000), but has not explicitly applied that standard to reliance damages. The court can discern no rationale for applying a standard to govern recovery of reliance damages more stringent than or otherwise differing from the standard applicable to recovery of lost profits. This court has applied the “inevitably and naturally” standard to distinguish cases in which a plaintiff seeks to recover lost profits flowing directly from transactions unrelated to the contract and flowing only indirectly from the contract itself. See Energy Capital, 47 Fed.Cl. at 395. When the lost transactions are “independent and collateral,” they do not result “inevitably and naturally” from the breach. See Wells Fargo Bank v. United States, 88 F.3d 1012, 1023 (Fed.Cir.1996) (denying lost profits damages “for the profits [the plaintiff] allegedly would have made on the additional loans it could have made” had the contract not been breached); Olin Jones Sand Co. v. United States, 225 Ct.Cl. 741, 1980 WL 13211 (1980) (denying recovery for damages resulting from the plaintiffs inability to obtain unrelated contracts due to third party bonding company’s refusal to issue bonds); Northern Helex Co. v. United States, 207 Ct.Cl. 862, 524 F.2d 707, 720 (1975) (denying recovery for costs of operating plant in connection with noncontractual work during" }, { "docid": "14354963", "title": "", "text": "veterans alleged, and second, the [plaintiff-manufacturers were] protected from liability to the veterans in any event under the Government contractor defense....” Id. Regarding the type of damages sought, the Claims Court, citing Hadley v. Baxendale, 9 Ex. 341, 156 Eng.Rep. 145 (1854), and Northern Helex Co. v. United States, 524 F.2d 707, 721, 207 Ct.Cl. 862 (1975), cert. denied, 429 U.S. 866, 97 S.Ct. 176, 50 L.Ed.2d 146 (1976), stated that “it is axiomatic that ... damages [arising from contract breaches] are limited to those that were reasonably foreseeable at the time the parties formed the contract.” Hercules, 25 Cl.Ct. at 627-28; Wm. T. Thompson, 26 Cl.Ct. at 27-28. From this proposition, the court reasoned that [t]he facts may support an implied warranty of specification, but they cannot be stretched so far as to support the theory that the parties came to a meeting of the minds that there would be an indemnification agreement between them if the implied warranty of specification was alleged, but never proven, to be violated. Hercules, 25 Cl.Ct. at 627; Wm. T. Thompson, 26 Cl.Ct. at 28. The Claims Court also held that there was no breach of the warranty of specification based on the manufacturer’s tort liability to third parties supposedly injured by the product because the manufacturer, under the circumstances alleged, was protected from liability by the Government contractor defense. Hercules, 25 Cl.Ct. at 628; Wm. T. Thompson, 26 Cl.Ct. at 28. We read this latter statement as a holding by the Claims Court that, assuming the existence of an implied warranty of specifications, Hercules and Thompson could not establish that the damages which they incurred — their payments into the Agent Orange settlement fund— flowed from a breach of that warranty, because the government contractor defense protected them against those damages and they incurred those damages as a result of their decision to settle the litigation in the face of that protection. As far as the claims for attorney’s fees were concerned, the Claims Court held that Hercules and Thompson could not recover such fees because they represented the kind of remote" }, { "docid": "11952485", "title": "", "text": "damages.” Testan, 424 U.S. at 398, 96 S.Ct. at 953. The basis for plaintiff’s instant suit is the government’s implied contract to fairly consider proposals, a contract that plaintiff formed by submitting its proposal in response to the Army’s RFP. See Keco, 192 Ct.Cl. at 780; Heyer Products, 135 Ct.Cl. at 69. In cases where the government has breached that implied contract, however, this court has asserted jurisdiction under the Tucker Act to award plaintiffs only their proposal preparation costs. See, e.g., Excavation Constr., Inc. v. United States, 494 F.2d 1289, 204 Ct.Cl. 299, 301 (1974); Keco, 192 Ct.Cl. at 785; Contract Custom Drapery Serv. v. United States, 6 Cl.Ct. 811, 819 (1984), aff'd 785 F.2d 321 (Fed.Cir.1985). Contrary to plaintiff’s assertion, attorney fees and other litigation expenses are consequential damages that this court normally does not award in contract breach cases. Kania, 227 Ct.Cl. at 467; N. Helex Co. v. United States, 524 F.2d 707, 207 Ct.Cl. 862, 886 (1975), cert. denied, 429 U.S. 866, 97 S.Ct. 176, 50 L.Ed.2d 146 (1976). Plaintiff next maintains that Congress intended for offerors to recover their protest costs in all forums, including this court. Under the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. § 3554, which governs proceedings in the General Accounting Office (GAO), the Comptroller General of the United States has the authority to grant aggrieved offerors the costs of filing and pursuing a protest, in-eluding attorney’s fees. Plaintiff contends that it is “nonsensical” to assume that Congress would allow recovery of protest costs in the GAO but not in this court. While CICA permits the Comptroller General to award protest costs, this statute does not, by analogy, allow this court to award such relief. See Johns-Manville Corp. v. United States, 893 F.2d 324 (Fed.Cir.1989). Indeed, CICA’s explicit waiver of sovereign immunity regarding protest costs before the GAO only highlights the absence of a similar provision authorizing the recovery of such costs in this court. Finally, plaintiff reasons that, as a policy matter, the court should award plaintiff its protest costs to preserve the incentives for future offerors to" }, { "docid": "14354962", "title": "", "text": "the government had “actually come to a meeting of the minds and taken upon themselves [the] corresponding obligations and liabilities” of the alleged reverse warranty. Hercules, 25 Cl.Ct. at 624. Turning to the warranty of specifications theory, the Claims Court held that even assuming that such a warranty arose, the plaintiff-manufacturers had failed to prove “that this warranty was breached by the Government and that this breach caused [them] to suffer the type of damages recoverable in contract.” Hercules, 25 Cl.Ct. at 625-26; Wm. T. Thompson, 26 Cl.Ct. at 25. Addressing first the portion of the damages claim which consisted of the payments into the settlement fund, the court set forth two separate reasons that it believed prevented Hercules and Thompson from proving that they were “actually subjected to tort liability by third parties because of [their] manufacture of Agent Orange for the Government’s military use.” Hercules, 25 Cl.Ct. at 626; Wm. T. Thompson, 26 Cl.Ct. at 26. “First,” the Claims Court stated, “dioxin has never been scientifically proven to cause the injuries that the veterans alleged, and second, the [plaintiff-manufacturers were] protected from liability to the veterans in any event under the Government contractor defense....” Id. Regarding the type of damages sought, the Claims Court, citing Hadley v. Baxendale, 9 Ex. 341, 156 Eng.Rep. 145 (1854), and Northern Helex Co. v. United States, 524 F.2d 707, 721, 207 Ct.Cl. 862 (1975), cert. denied, 429 U.S. 866, 97 S.Ct. 176, 50 L.Ed.2d 146 (1976), stated that “it is axiomatic that ... damages [arising from contract breaches] are limited to those that were reasonably foreseeable at the time the parties formed the contract.” Hercules, 25 Cl.Ct. at 627-28; Wm. T. Thompson, 26 Cl.Ct. at 27-28. From this proposition, the court reasoned that [t]he facts may support an implied warranty of specification, but they cannot be stretched so far as to support the theory that the parties came to a meeting of the minds that there would be an indemnification agreement between them if the implied warranty of specification was alleged, but never proven, to be violated. Hercules, 25 Cl.Ct. at 627;" }, { "docid": "17339859", "title": "", "text": "their allegation of poor management by High Plains does not support a finding that an adverse change had taken place.” Wells Fargo Bank, N.A., 26 Cl.Ct. at 816-17. III. “The general rule in common law breach of contract cases is to award damages that will place the injured party in as good a position as he or she would have been in had the breaching party fully performed.” Estate of Berg v. United States, 231 Ct.Cl. 466, 687 F.2d 377, 379 (1982); Northern Helex Co. v. United States, 207 Ct.Cl. 862, 524 F.2d 707, 713, 720 (1975), cert. denied, 429 U.S. 866, 97 S.Ct. 176, 50 L.Ed.2d 146 (1976). However, “remote and consequential damages are not recoverable in a common-law suit for breach of contract ____ especially ... in suits against the United States for the recovery of common-law damages, such as the instant case.” Northern Helex Co., 524 F.2d at 720. Moreover, attempting to determine what would have happened if the guarantee had been issued necessarily involves a highly speculative and conjectural inquiry. The government challenges both items of damages the Court of Federal Claims awarded for the government’s breach of the eon- tract to issue the guarantee: (A) $10,496,000 for the profits the court determined Wells Fargo lost as a consequence of the breach and (B) $389,423 of High Plains’s indebtedness that Wells Fargo forgave when it received the proceeds of High Plains’s public stock offering. We reverse on the first item, and affirm on the second. A. 1. The Court of Federal Claims awarded lost profits damages on the following theory: A bank’s ability to make loans from the deposits it receives is limited by its capital. For each dollar of Wells Fargo’s capital, it could make loans of fifteen dollars. As a result of the Administration’s refusal to issue the guarantee and the poor quality of the High Plains loan, Wells Fargo charged off $9.7 million on the loan, which “resulted in an equal reduction to Wells’ capital. This capital reduction lessened the ability of Wells to make loans of up to 15 times the amount" }, { "docid": "23694445", "title": "", "text": "plaintiff. According to several persuasive opinions of this court, the claim is also “consequential” in nature and thus not recoverable under a contract theory. The determination of whether damages are consequential turns on whether the plaintiff’s damages were the natural and probable consequences of an alleged breach of contract. See Gardner Displays Co. v. United States, 171 Ct.Cl. 497, 346 F.2d 585, 589 (1965); Ramsey v. United States, 121 Ct. Cl. 426, 101 F.Supp. 353, 357 (1951), cert, denied, 343 U.S. 977, 72 S.Ct. 1072, 96 L.Ed. 1369 (1952). If plaintiff had offered a preponderance of credible proof that defendant tortiously breached its contract, it might have recovered the damages sought; but it did not. The failure to receive future contracts was consequential. Moreover, the court is not unmindful of plaintiff’s assertions that it continued to receive contracts following the termination for default and that after its full bonding was reinstated in 1987 it did extremely well. There is no assurance that plaintiff would have been awarded any contracts in question had bonding been available to it. “Receipt or non-receipt of future contracts is both speculative in nature and dependent on many factors not related to bonding.” Olin Jones, 225 Ct.Cl. at 744. Moreover, there is no suggestion that the parties could have contemplated such losses at the time they entered into the contract. See Northern Helex Co. v. United States, 207 Ct.Cl. 862, 524 F.2d 707, 714 (1975), cert, denied, 429 U.S. 866, 97 S.Ct. 176, 50 L.Ed.2d 146 (1976). The court finds that the injury claimed is too remote, consequential, and speculative to permit recovery as a matter of law, Rhen v. United States, 17 Cl.Ct. at 143-44, and is denied. The damage to reputation claim is denied and dismissed. 17. Legal and Related Fees Plaintiff made a claim for legal fees arising out of this dispute: For defending subcontractor and supplier lawsuits; for its surety’s legal and consultant expenses; and for legal fees incurred in this litigation, and costs. Attorney’s fees can be awarded to a plaintiff only in situations allowed by the Equal Access to Justice" }, { "docid": "11952484", "title": "", "text": "S.Ct. at 953; Zumerling v. Marsh, 783 F.2d 1032, 1034 (Fed.Cir.1986). As a general rule, absent specific legislation to the contrary, the costs of litigation, whether legal, accounting, secretarial, or other, are not recoverable against the United States. Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 265-68, 95 S.Ct. 1612, 1626-27, 44 L.Ed.2d 141 (1975); Texas Instruments, Inc. v. United States, 991 F.2d 760, 763 (Fed.Cir.1993); Kania v. United States, 650 F.2d 264, 227 Ct.Cl. 458, 466-67, cert. denied, 454 U.S. 895, 102 S.Ct. 393, 70 L.Ed.2d 210 (1981); 28 U.S.C. § 2412(a). Plaintiff argues that the Tucker Act authorizes the court to award attor ney fees in contract breach cases. The court, however, does not construe this statute so broadly. See Zumerling, 783 F.2d at 1034; Fidelity Construction Co. v. United States, 700 F.2d 1379, 1387 (Fed.Cir.), cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 103 (1983). The Tucker Act “is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.” Testan, 424 U.S. at 398, 96 S.Ct. at 953. The basis for plaintiff’s instant suit is the government’s implied contract to fairly consider proposals, a contract that plaintiff formed by submitting its proposal in response to the Army’s RFP. See Keco, 192 Ct.Cl. at 780; Heyer Products, 135 Ct.Cl. at 69. In cases where the government has breached that implied contract, however, this court has asserted jurisdiction under the Tucker Act to award plaintiffs only their proposal preparation costs. See, e.g., Excavation Constr., Inc. v. United States, 494 F.2d 1289, 204 Ct.Cl. 299, 301 (1974); Keco, 192 Ct.Cl. at 785; Contract Custom Drapery Serv. v. United States, 6 Cl.Ct. 811, 819 (1984), aff'd 785 F.2d 321 (Fed.Cir.1985). Contrary to plaintiff’s assertion, attorney fees and other litigation expenses are consequential damages that this court normally does not award in contract breach cases. Kania, 227 Ct.Cl. at 467; N. Helex Co. v. United States, 524 F.2d 707, 207 Ct.Cl. 862, 886 (1975), cert. denied, 429 U.S. 866, 97 S.Ct. 176, 50 L.Ed.2d 146 (1976). Plaintiff next" }, { "docid": "17339862", "title": "", "text": "the time value of the lost earnings caused by the temporary loss of capital. In sum, the total debtside damages claimed by Wells is $10,885,423.86.” Id. at 240. The court held that Wells Fargo was entitled to recover “the lost profits resulting from the capital losses caused by the government’s breach.” Id. at 246. The court ruled that “[t]he effect of the charge-offs and the loan’s non-accrual status (i.e., inability to book interest as income when received) were clearly foreseeable in this ease due to the nature of the [Administration’s] loan guarantee program, and the regulated nature of the banking industry____[t]he lost capital damages claimed by Wells were foreseeable at the time of contracting, and ... there was no intervening causal step between the government’s breach and the damages claimed by Wells.” Id. at 247. 2. Our predecessor court, the Court of Claims, in breach of contract cases repeatedly refused to award damages for profits lost on transactions not directly related to the contract that was breached. See Roberts v. United States, 18 Cl.Ct. 351, 358 (1989) (citing Court of Claims eases denying lost profits damages). Of course, not every injury resulting from a breach of contract is remediable in damages. Globe Ref. Co. v. Landa Cotton Oil Co., 190 U.S. 540, 23 S.Ct. 754, 47 L.Ed. 1171 (1903). In Ramsey v. United States, 121 Ct.Cl. 426, 101 F.Supp. 353 (1951), cert. denied, 343 U.S. 977, 72 S.Ct. 1072, 96 L.Ed. 1369 (1952), where the government delayed payment on contracts with the plaintiff, the court, in denying lost profits damages, stated: The profits lost from the corporation’s over-all business activities, because of its shortage of capital allegedly occasioned by the Government’s failure to pay the contract amounts when due, may not be recovered either. It is important to bear in mind that the corporation’s claim is not for the anticipated profits of the contracts in question, but is a claim for the anticipated profits of its entire business enterprise. The lost profits of these collateral undertakings, which the corporation was unable to carry out, are too remote to be classified" } ]

[ { "docid": "22550912", "title": "", "text": "other things in an opinion by Judge Gray said (185 Fed. Rep., p. 347): “The very ingenious and forceful argument presented to this court by the petitioner for review, is founded mainly upon the proposition that.: ‘The right to command services of the value of $80,000.00 is property; the services also are property; the test is value — not degree of intangi bility.’ . . . That the word 'property’ is nomen generalissimum, as asserted by the petitioner, is not to be denied, but no more is it to be denied that its meaning may be restricted, not only by the application, of the maxim, noscitur a sociis, but by the purpose for which it is used, or by its evident use as a word of art, or by its use in a technical sense. The very generality of .the word requires restriction. . . . There are, however, well considered decisions of the highest authority) in which, - from the view point of the particular case, personal rights and liberties are to be included within the meaning of the word 'property’. . . . Such cases, however, are far from saying that services actually rendered under a supposed . contract are themselves property, which . have been taken fraudulently from the possession of the one who has rendered the service, within the meaning of that word as used in the section of the bankruptcy act now under consideration.” • The accurate delimitation of the concept property would afford a theme especially apposite for amplificative philosophic disquisition; but the Bankrupt Law is a prosy thing intended for ready application to the everyday affairs of practical business, and when construing its terms we are constrained by their usual acceptation in that field of endeavor. ■ The word property, without restriction, - occurs more than seventy times • in the; Act. Not once does it plainly refer to professional services, and, except in very few instances, to.include them within its intendment would produce a patent absurdity. Reference to the following provisions will suffice to indicate the sense of the word therein. Section" } ]

[ { "docid": "22736044", "title": "", "text": "law known “sacrilege” to be used in any wider sense than the physical injury to church property. \\ It is true that, at times in the past, English law has taken jurisdiction to punish departures from accepted dogma or religious practice or the expression of particular religious opinions, but never have these “offenses” been denominated “sacrilege.” Apostasy, heresy, offenses against the Established Church, blasphemy, profanation of the Lord’s Day, etc., were distinct criminal offenses, characterized by Blackstone as “offences against God and religion.” These invidious reflections upon religious susceptibilities were not covered under sacrilege as they might be under the Court of Appeals’ opinion. Anyone doubting the dangerous uncertainty of the New York definition, which makes “sacrilege” overlap these other “offenses against religion,” need only read Blackstone’s account of the broad and varying content given each of these offenses. A student of English lexicography would despair of finding the meaning attributed to “sacrilege” by the New York court. Most dictionaries define the concept in the limited sense of the physical abuse of physical objects. The definitions given for “sacrilege” by two dictionaries published in 1742 and 1782 are typical. Bailey’s defined it as “the stealing of Sacred Things, Church Robbing; an Alienation to Laymen, and to profane and common Purposes, of what was given to religious Persons, and to pious Uses.” Barclay’s said it is “the crime of taking any thing dedicated to divine worship, or profaning any thing sacred,” where “to profane” is defined “to apply any thing sacred to common uses. To be irreverent to sacred persons or things.” The same dictionaries defined “blasphemy,” a peculiarly verbal offense, in much broader terms than “sacrilege,” indeed in terms which the New York court finds encompassed by “sacrilegious.” For example, Barclay said “blasphemy” is “an offering some indignity to God, any person of the Trinity, any messengers from God, his holy writ, or the doctrines of revelation.” It is hardly necessary to comment that the limits of this definition remain too uncertain to justify constraining the creative efforts of the imagination by fear of pains and penalties imposed by a" }, { "docid": "18568047", "title": "", "text": "less than an unlimited, unspecified number unnecessarily circumscribes the plain meaning of the word. The other key word is “property.” As to the word “property”, Webster’s supra at 1984 states the meaning as: “The exclusive right to possess, enjoy, and dispose of, a thing; ownership; in a broad sense, any valuable right or interest considered primarily as a source or element of wealth, . . that to which a person has legal title; thing owned; . . . ” According to Black’s Law Dictionary, supra at 1095, “property” is “[t]hat which is peculiar or proper to any person; that which belongs exclusively to one . . . . The word is also commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything which has an exchangeable value or which goes to make up wealth or estate.” The defined meaning of “property”, is very broad. The trustee’s position is somewhat inconsistent as to what constitutes property. In arguing under 11 U.S.C.A. § 541 (1979) that tax refunds and wage holdbacks are part of the debtor’s estate, the trustee urges that an all encompassing meaning be attached to the word “property” in the phrase “property of the estate.” But with respect to “property” under § 522(d)(5), the trustee submits that a more limited meaning be given to the word in this context than would be attached in some other. No explanation has been offered as to why the same word should have different -meanings. The trustee has argued that the reference in § 522(b)(1) to the property “specified” in § 522(d) has the effect of limiting the exemptions to those types or kinds of property expressly stated in subsection (d). The trustee is apparently relying upon the maxim of statutory construction expressio unius est exclusio alterms. Tax refunds and wage holdbacks, not being expressly stated, cannot be included as exempt property. The interpretation offered by the trustee burdens unduly the meaning suggested by the dictionary definition and common usage of the english language. As discussed above, the meaning" }, { "docid": "5858802", "title": "", "text": "ground that the act of state defense bars relief cannot be justified on the record at this time. Id. at 1536 (emphasis added) (footnote omitted). This analysis, with all respect, misses the mark. The majority, it seems to me, has conveniently confused the concept of a “taking” of property with the formal expropriation procedures used to compensate the property owner and to effect a formal transfer of title to the state. But that will not do. Not a single fact or scrap of information beyond that alleged in the plaintiffs’ own complaint and supporting declarations and those contained in the Honduran governmental decrees is necessary to establish the fact of a “taking” by the Honduran government. It is the question whether a taking has occurred, rather than whether the expropriation process has been completed, which is relevant to a proper analysis under the act of state doctrine. The majority's attempt to deal with this analysis, Maj. Op. at 1535 n. 154, is, in a word, misleading. Section 43 of the Restatement (Second), supra, on which the majority relies, deals only with actions of a foreign state \"with respect to a thing located, or an interest localized, outside of its territory.” It thus has no applicability whatever to this case. That there is nothing talismanic about formal or informal procedures employed by a sovereign government to seize property within its boundaries is made clear by the definition of “taking” set forth in the Restatement (Second) of Foreign Relations Law (1965): Conduct attributable to a state that is intended to, and does, effectively deprive an alien of substantially all the benefit of his interest in property, constitutes a taking of the property, within the meaning of § 185 [of the Restatement (Second), which defines “wrongful” takings of alien property], even though the state does not deprive him of his entire legal interest in the property. Id. § 192 (emphasis added). Applying the common-sense definition of “taking” which has developed in international law, it is abundantly clear that plaintiffs have alleged facts, which we must accept as true at this stage of the" }, { "docid": "3625795", "title": "", "text": "Tedesco, 147 Vt. 133, 513 A.2d 1164, 1166 (1986) (“In the absence of a statute abrogating it, the common law applies in Vermont.”) The Bankruptcy Court's characterization of the right to receive future rents is in conflict with the common law, and the majority of states confronting this issue. Blackstone defined an incorporeal here-ditament as “a right issuing out of a thing corporate (whether real or personal)....” 2 W. Blackstone, Commentaries *21. Blackstone listed rents as one of the ten principal incorporeal hereditaments and stated that they must issue out of lands and tenements corporeal. 2 Blackstone, Supra, at *21 and *41. Because the language in the assignment covered both rents arising from the lease and rents arising from the use of the premises described in the lease, Blackstone’s definition of here-ditaments is applicable here. See also Tiffany, The Law of Real Property, § 881 (3rd ed. 1939) (“An assignment of rent already due is an assignment of a mere chose in action while an assignment of the rent, that is, of the right to the installments as they come due in the future, is properly not an assignment of a chose in action, but is a transfer of an interest in land.”); 66 Am. Jur.2d Records and Recording Laws § 65 (1973 & Supp.1987) (“An assignment of rents to accrue from the leasing of realty is an incorporeal hereditament, an incident to an estate in land, and such a transfer of an interest in realty as to come within the operation of ... recording laws_”); 49 Am.Jur.2d, Landlord and Tenant § 515 (1970 & Supp.1987) (“Rent to accrue ... is an incident of the reversion.... Logically, if rent to accrue is an incident of the reversion, it should be regarded, not as a mere chose in action, but as a chattel real.”); Davisson v. Commissioner of Revenue, 18 Mass.App.Ct. 748, 470 N.E.2d 413, 416 (1984) (the right to future rent payments is an interest in real estate); Denney v. Teel, 688 P.2d 803, 809 (Okla.1984) (non-participating royalty interests in oil and gas leases analogized to the incorporeal heredit-aments of" }, { "docid": "3625794", "title": "", "text": "that the collateral assignment of the lease, the promissory note, and the loan agreement gave it a security interest in the right to receive future rents, which right is a hereditament, within the meaning of Vt.Stat.Ann. tit. 1 § 132. The court below found that the right to receive future rents was not a heredit-ament but “a mere chose in action for the remaining, if any, unpaid rent....” 71 B.R. at 606. The courts in Vermont have never expressly ruled on the issue of whether the right to unaccrued rent on a lease of real property is a hereditament within the meaning of Vt.Stat.Ann. tit. 1 § 132. Under these circumstances, we are instructed by statute to look to the common law for guidance: So much of the common law of England as is applicable to the local situation and circumstances and is not repugnant to the constitution or laws shall be laws in this state and courts shall take notice thereof and govern themselves accordingly. Vt.Stat.Ann. tit. 1 § 271; see also State v. Tedesco, 147 Vt. 133, 513 A.2d 1164, 1166 (1986) (“In the absence of a statute abrogating it, the common law applies in Vermont.”) The Bankruptcy Court's characterization of the right to receive future rents is in conflict with the common law, and the majority of states confronting this issue. Blackstone defined an incorporeal here-ditament as “a right issuing out of a thing corporate (whether real or personal)....” 2 W. Blackstone, Commentaries *21. Blackstone listed rents as one of the ten principal incorporeal hereditaments and stated that they must issue out of lands and tenements corporeal. 2 Blackstone, Supra, at *21 and *41. Because the language in the assignment covered both rents arising from the lease and rents arising from the use of the premises described in the lease, Blackstone’s definition of here-ditaments is applicable here. See also Tiffany, The Law of Real Property, § 881 (3rd ed. 1939) (“An assignment of rent already due is an assignment of a mere chose in action while an assignment of the rent, that is, of the right to" }, { "docid": "7228771", "title": "", "text": "'written to be understood by the voters.’” Heller, 554 U. S., at 576 (quoting United States v. Sprague, 282 U. S. 716, 731 (1931)). Thus, the objective of this inquiry is to discern what “ordinary citizens” at the time of ratification would have understood the Privileges or Immunities Clause to mean. 554 U. S., at 577. A 1 At the time of Reconstruction, the terms “privileges” and “immunities” had an established meaning as synonyms for “rights.” The two words, standing alone or paired together, were used interchangeably with the words “rights,” “liberties,” and “freedoms,” and had been since the time of Blackstone. See 1 W. Blackstone, Commentaries *129 (describing the “rights and liberties” of Englishmen as “private immunities” and “civil privileges”). A number of antebellum judicial decisions used the terms in this manner. See, e. g., Magill v. Brown, 16 F. Cas. 408, 428 (No. 8,952) (CC ED Pa. 1833) (Baldwin, J.) (“The words 'privileges and immunities’ relate to the rights of persons, place or property; a privilege is a peculiar right, a private law, conceded to particular persons or places”). In addition, dictionary definitions confirm that the public shared this understanding. See, e. g., 2 N. Webster, An American Dictionary of the English Language 1039 (C. Goodrich & N. Porter rev. 1865) (defining “privilege” as “a right or immunity not enjoyed by others or by all” and listing among its synonyms the words “immunity,” “franchise,” “right,” and “liberty”); 1 id., at 661 (defining “immunity” as “[f]reedom from an obligation” or “particular privilege”); 2 id., at 1140 (defining “right” as “[pjrivilege or immunity granted by authority”). The fact that a particular interest was designated as a “privilege” or “immunity,” rather than a “right,” “liberty,” or “freedom,” revealed little about its substance. Blackstone, for example, used the terms “privileges” and “immunities” to describe both the inalienable rights of individuals and the positive-law rights of corporations. See 1 Commentaries, at *129 (describing “private immunities” as a “residuum of natural liberty,” and “civil privileges” as those “which society hath engaged to provide, in lieu of the natural liberties so given up by individuals”);" }, { "docid": "22750670", "title": "", "text": "a pepper corn be, in the eye of the law, of sufficient value to found a contract, as upon a valuable consideration, are these implied agreements, and these relinquishments of right and benefit, to be deemed wholly worthless ? It has never been doubted, that an agreement not to exercise a trade in a particular place was a sufficient consideration to sustain a contract, for the payment of money. A fortiori, the relinquishment of property which a person holds, or controls the use of, as a trust, is a sufficient consideration ; for it is parting wdth a legal right. Even a right of patronage (jus patronatus) is of great value in intendment of law. Nobody doubts, that an advowson is a valuable hereditament; and yet, in fact, it is but a mere trust, or right of nomination to a benefice, which cannot be legally sold to the intended incumbent. In respect to Dr. Wheelock, then, if a consideration be necessary to support the charter as a contract, it‘ is to be found in the implied stipulations on his part in the charter itself. He relinquished valuable rights, and undertook a laborious office in consideration of the grant of the incorporation. This is not all. A charter may be granted upoii an executory, as well as an executed or present consideration. When it' is granted to persons who have - not made application for it, until their acceptance thereof, the grant is yet in fieri. Upon the accept; anee there is an implied contract on the part of the grantees, in consideration of the charter, that they will perforngi the duties, and exercise the authbrities conferred by it. This was. the doctrine asserted by the late learned Mr. Justice Buller, in a modern case. He there said, “ I do not know how to reason on this point better than in the manner urged by one of the relator’s counsel, who considered the grant of incorporation to be a compact between the crown, and a certain number of the subjects, the latter of whom undertake, in consideration of the privileges" }, { "docid": "1659113", "title": "", "text": "of the Court of Appeals for the Second Circuit is reversed. It is so ordered. Justice ALITO, with whom Justice KENNEDY and Justice SOTOMAYOR join, concurring in the judgment. The question that we must decide in this case is whether \"the General Counsel's recommendation to approve the Commitment,\" App. 142-or his right to make that recommendation-is property that is capable of being extorted under the Hobbs Act, 18 U.S.C. § 1951. In my view, they are not. I The jury in this case returned a special verdict form and stated that the property that petitioner attempted to extort was \"the General Counsel's recommendation to approve the Commitment.\" What the jury obviously meant by this was the general counsel's internal suggestion to his superior that the state government issue a nonbinding commitment to invest in a fund managed by FA Technology Ventures. We must therefore decide whether this nonbinding internal recommendation by a salaried state employee constitutes \"property\" within the meaning of the Hobbs Act, which defines \"extortion\" as \"the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.\" § 1951(b)(2). The Hobbs Act does not define the term \"property,\" but even at common law the offense of extortion was understood to include the obtaining of any thing of value. 2 E. Coke, The First Part of the Institutes of the Laws of England 368b (18th English ed. 1823) (\"Extortion ... is a great misprison, by wresting or unlawfully taking by any officer, by colour of his office, any money or valuable thing of or from any man\"); 4 W. Blackstone, Commentaries *141 (extortion is \"an abuse of public, justice which consists in any officer's unlawfully taking, by colour of his office, from any man, any money or thing of value\"). See also 2 J. Bishop, Criminal Law § 401, pp. 331-332 (9th ed. 1923) (\"In most cases, the thing obtained is money.... But probably anything of value will suffice\"); 3 F. Wharton, A Treatise on Criminal Law § 1898, p. 2095 (11th ed." }, { "docid": "11447059", "title": "", "text": "is unnecessary, but also, I submit, expands the Section’s meaning beyond all logical reason. I cannot conceive that the Congress, when enacting the Section, intended that its enactment should ever be given such an expansive interpretation. As to the issue involving Section 17(a)(8), I would therefore affirm the judgment of the District Court. . 11 U.S.C. § 35(a)(4). . 11 U.S.C. § 35(a)(8). . Grappling with just such an attempt to define “property,” the Supreme Court wrote: The accurate delimitation of the concept ‘property’ would afford a theme especially apposite for amplificative philosophic disquisition; but the bankrupt law is a prosy thing, intended for ready application to the everyday affairs of practical business, and when construing its terms we are constrained by their usual acceptation in that field of endeavor. * * * * * * At most it [property] denotes something subject to ownership, transfer, or exclusive possession and enjoyment, which may be brought within the dominion and control of a court . through some recognized process. This is certainly the full extent of the word’s meaning as employed in ordinary speech and business, and the same significance attaches to it in many carefully prepared writings. Gleason v. Thaw, 236 U.S. 558, 560-61, 35 S.Ct. 287, 288-89, 59 L.Ed. 717 (1915). .My research has uncovered no cases that have given Section 17(a)(8) protection to such an undifferentiated expectancy as has the majority here. To the contrary, in those cases dealing with the dischargeability of debts arising out of a bankrupt’s “willful and malicious” interference with a creditor’s ability to collect on his account, Section 17 “property” has been recognized to have been injured only in more limited contexts such, for example, as when the interference has been directed at security interests in real property, personalty, or accounts receivable. See, e. g., McIntyre v. Kavanaugh, 242 U.S. 138, 37 S.Ct. 38, 61 L.Ed. 205 (1916) (corporate stock held as security for indebtedness); In re Nance, 556 F.2d 602 (1st Cir. 1977) (assignment of deferred wages); Baker v. Bryant Fertilizer Co., 271 F. 473 (4th Cir. 1921) (accounts assigned as security);" }, { "docid": "22677958", "title": "", "text": "To determine that sense, we looked for guidance to 2 W. LaFave & A. Scott, Substantive Criminal Law (1986), and the American Law Institute’s Model Penal Code (1980). We defined “burglary” as “any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor, supra, at 599. In defining “extortion” for purposes of ACCA, I would follow the same approach. “At common law, extortion was a property offense committed by a public official who took ‘any money or thing of value’ that was not due to him under the pretense that he was entitled to such property by virtue of his office.” Scheidler v. National Organization for Women, Inc., 537 U. S. 393, 402 (2003) (quoting 4 W. Blackstone, Commentaries on the Laws of England 141 (1769), and citing 3 R. Anderson, Wharton’s Criminal Law and Procedure § 1393, pp. 790-791 (1957)); see also 3 W. LaFave, Substantive Criminal Law §20.4 (2d ed. 2003). As with burglary, however, modern conceptions of extortion have gone well beyond the common-law understanding. In the Hobbs Act, for example, Congress “explicitly ‘expanded the common-law definition of extortion to include acts by private individuals.’” Scheidler, supra, at 402 (quoting Evans v. United States, 504 U. S. 255, 261 (1992)). And whereas the Hobbs Act retained the common-law requirement that something of value actually be acquired by the extortionist, Scheidler, supra, at 404-405, the majority of state statutes require only “that the defendant make a threat with intent thereby to acquire the victim’s property,” 3 LaFave, Substantive Criminal Law § 20.4(a)(1), at 199 (emphasis added). Further, under most state statutes, the category of qualifying threats has expanded dramatically, to include threats to: “kill the victim in the future,” “cause economic harm,” “'bring about or continue a strike, boycott or other collective unofficial action,’ ” “unlawfully detain,” “accuse the victim of a crime,” “expose some disgraceful defect or secret of the victim which, when known, would subject him to public ridicule or disgrace,” and “impair one’s" }, { "docid": "13597421", "title": "", "text": "is placéd in the tenancy^ The particular éstates, and those expectant upon them, form in' law only one estate; and the delivery of possession to the person taking first extends to all. All therefore may be said to be seised, all .being placed in the tenáncy, and the pro* ■ perty Peing thus fixed in all. It is upon these, principles tháf the authorities lay down the. doctrine, that a judgment binds a reversion after an estate for\"life. ■ We are therefore satisfied that the judgment of the appellees bound the reversionary interest in the land in question; and as to the other property embraced in th'e decree, there is no room for doubt or difficulty.- And then the question is,- whether the Court ought to have decreed a,sale, with a view to accelerate the payment of the debt; or whether the appellees. should . have been left to such remedy as they had at law ? Upon the subject of the powér of a Court of equity in this respect, the authorities are decisive. More than a cen■tury ago, in the case, of Robinson vs. Tong, 3 Viner’s Abr. Assets A, pl. 28, p. 145, an advowson was decreed-to be sold, at the instance bf creditors, as. assets descended; and the decree was affirmed in the House of Lords.- .That is supposed to have been the case npt of judgment,, but bond creditors. In Stileman vs. Ashdown, 2 Atk. 607, Lord Hardwicke decreed a sale of a moiety of the land to satisfy a judgment creditor. He oonfiiie'd the decree to. a moiety j fiecause the judgment .only Pairad a moiety at law. On that occasion he said, that whilst equity could not change the -rights of the parties, It might accelerate, the payment by directing the salé bf a moiety, and not let. the creditor, wait until he was paid out of the rents and profits. Thé principle was asserted by Lord Redesdale in 2 Sch.\" and L,ef. 138, and in the same book, 13; and such he stated to be the settled doctriné in.Ireland. .In the first" }, { "docid": "22720113", "title": "", "text": "the legislative purpose is expressed by the ordinary meaning of the words used.” Richards v. United States, 369 U. S. 1, 9 (1962). The ordinary meaning of “interest” surely encompasses a right to profits or proceeds. See Webster’s Third New International Dictionary 1178 (1976), broadly defining “interest,” among other things, as a “good,” “benefit,” or “profit.” Random House Dictionary of the English Language 741 (1979) defines interest to include “benefit.” Black’s Law Dictionary 729 (5th ed., 1979) provides a significant definition of “interest”: “The most general term that can be employed to denote a right, claim, title, or legal share in something.” It is thus apparent that the term “interest” comprehends all forms of real and personal property, including profits and proceeds. This Court repeatedly has relied upon the term “interest” in defining the meaning of “property” in the Due Process Clause of the Fourteenth Amendment of the Constitution. See Perry v. Sindermann, 408 U. S. 593, 601 (1972) (“‘property’ denotes a broad range of interests”); Logan v. Zimmerman Brush Co., 455 U. S. 422, 430 (1982); Jago v. Van Curen, 454 U. S. 14, 17-18 (1981). It undoubtedly was because Congress did not wish the forfeiture provision of § 1963(a) to be limited by rigid and technical definitions drawn from other areas of the law that it selected the broad term “interest” to describe those things that are subject to forfeiture under the statute. Congress selected this general term apparently because it was fully consistent with the pattern of the RICO statute in utilizing terms and concepts of breadth. Among these are “enterprise” in § 1961(4); “rack eteering activity” in § 1961(1) (1982 ed.); and “participate” in § 1962(c). Petitioner himself has not attempted to define the term “interest” as used in § 1963(a)(1). He insists, however, that the term does not reach money or profits because, he says: “‘Interest,’ by definition, includes of necessity an interest in something.” Brief for Petitioner 9. Petitioner then asserts that the “something” emerges from the wording of § 1963(a)(1) itself, that is, an interest “acquired ... in violation of section 1962,” and" }, { "docid": "11508690", "title": "", "text": "§ 107(d)(2)(a): “Every transfer made ... by a debtor within one year prior to the filing of a petition initiating a proceeding under this title by or against him is fraudulent (a) as to creditors existing at the time of such transfer ..., if made or incurred without fair consideration by a debtor who is or will be thereby rendered insolvent, without regard to his actual intent.” A “transfer” is defined under old Title 11 as including “the sale and every other and different mode, direct or indirect, of disposing of or of parting with property or with an interest therein or with the possession thereof ..., absolutely or conditionally, voluntarily or involuntarily, ... as a conveyance, sale, assignment, ... gift, ... or otherwise.” Repealed 11 U.S.C. § 1(30). And “property” has been held to mean “something subject to ownership, transfer, or exclusive possession and enjoyment, which may be brought within the dominion and control of a court through some recognized process.” In re Portland Newspaper Publishing Co., 271 F.Supp. 395, 398 (D.Or.1967), quoting Gleason v. Thaw, 236 U.S. 558, 561, 35 S.Ct. 287, 288, 59 L.Ed. 717 (1915). It has also been decided, perhaps a bit more broadly, as “anything of value — anything which has debt paying or debt securing power.” Pirie v. Chicago Title & Trust Co., 182 U.S. 438, 443, 21 S.Ct. 906, 908, 45 L.Ed. 1171 (1901). The difficulty of formulating a comprehensive yet meaningful definition of property was acknowledged by the Supreme Court in Gleason: “The accurate delimination of the concept property would afford a theme especially apposite for amplificative philosophic disquisition.” 236 U.S. at 560, 35 S.Ct. at 288. The Court went on to observe that the Bankruptcy Act is a pragmatic statute and its terms ought ordinarily to be accorded the benefit of a pragmatic reading. Id. More recently the court has again emphasized the importance which must be ascribed to the purposes of the Bankruptcy Act in interpreting the terms, including “property,” which it employs. Segal v. Rochelle, 382 U.S. 375, 379, 86 S.Ct. 511, 514, 15 L.Ed.2d 428 (1966). The" }, { "docid": "1659114", "title": "", "text": "his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.\" § 1951(b)(2). The Hobbs Act does not define the term \"property,\" but even at common law the offense of extortion was understood to include the obtaining of any thing of value. 2 E. Coke, The First Part of the Institutes of the Laws of England 368b (18th English ed. 1823) (\"Extortion ... is a great misprison, by wresting or unlawfully taking by any officer, by colour of his office, any money or valuable thing of or from any man\"); 4 W. Blackstone, Commentaries *141 (extortion is \"an abuse of public, justice which consists in any officer's unlawfully taking, by colour of his office, from any man, any money or thing of value\"). See also 2 J. Bishop, Criminal Law § 401, pp. 331-332 (9th ed. 1923) (\"In most cases, the thing obtained is money.... But probably anything of value will suffice\"); 3 F. Wharton, A Treatise on Criminal Law § 1898, p. 2095 (11th ed. 1912) (\"[I]t is enough if any valuable thing is received\"). At the time Congress enacted the Hobbs Act, the contemporary edition of Black's Law Dictionary included an expansive definition of the term. See Black's Law Dictionary 1446 (3d ed. 1933). It stated that \"[t]he term is said to extend to every species of valuable right and interest.... The word is also commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate.\"Id., at 1446-1447. And the lower courts have long given the term a similarly expansive construction. See, e.g., United States v. Tropiano, 418 F.2d 1069, 1075 (C.A.2 1969) (\"The concept of property under the Hobbs Act ... includes, in a broad sense, any valuable right considered as a source or element of wealth\"). Despite the breadth of some of these formulations, however, the term \"property\" plainly does not reach everything that a person may hold dear; nor" }, { "docid": "22214496", "title": "", "text": "does not operate to impair the contract affected by it, but recognizes its obligation in the fullest extent, claiming only the fulfilment of an essential and inseparable condition. . ■ . . A distinction has been attempted, in argument, between the power of a government to appropriate for public uses property which is corporeal, or may be said to be in being, and the like power in the government to resume or extinguish a franchise. The distinction, thus attempted, we regard as a refinement which has no foundation in reason, and one that, in truth, avoids the true legal or constitutional question in these causes ; namely, that of the right in private persons, in the use or enjoyment of their private property, to control and actually to prohibit the power and duty of the government to advance and protect the general good. We are aware of nothing peculiar to a franchise which can class it higher, or render it more sacred, than other property. A franchise is property and nothing more; it is incorporeal property, and is so defined by Justice Blackstone, when treating, in his second volume, c. 3, p. 20, of the Rights of Things.” See also The Richmond &c. Railroad Company v. The Louisa Railroad Company, 13 How. 71, 83; Boston & Lowell Railroad v. Salem & Lowell Railroad, 2 Gray, 1, 35, 36. The views thus expressed-have never been overruled, and we think are controlling of this case. Counsel seek to distinguish that case from this in that here, as they say, there is an' executory contract for 25 years, whereas in that case there was only incorporeal property, the result of an executed grant; here the use of the water works property is not changed, whereas there the bridge was converted from a toll into a free bridge, and they quote some remarks made by Mr. Justice McLean, in a concurring opinion in respect to this matter, p. 537, as follows: “ No State could resume a charter, under the power of appropriation, and carry on the functions of the corporation. A bank charter" }, { "docid": "18079199", "title": "", "text": "“generic, contemporary” definitions — such as those found in state statutes — may apply. See Taylor, 495 U.S. at 596, 598, 110 S.Ct. 2143 .... Furthermore, “Congress’ general purpose in enacting a law may prevail over this rule of statutory construction” altogether. Id. Drakes, 240 F.3d at 249. Under this approach, “we must examine [Pennsylvania’s theft by deception] law to see if it encompasses acts beyond those subject to prosecution under the federal [theft offense] definition[,]” as contemplated by 8 U.S.C. § 1101(a)(43)(G). Id. at 249. More specifically, we must determine whether a Pennsylvania theft by deception offense is also an “offense involving fraud or deceit” set forth in 8 U.S.C. § 1101(a)(43)(M)(i). Unfortunately the INA does not define “theft offense,” and equally unfortunately, Congress has not supplied a definition of “theft” or “larceny” in the galaxy of federal offenses. And, in the context of the facts in this case, we are unwilling to say that the contretemps involving a theft offense crime and a fraud or deceit crime is free from ambiguity. We therefore must refer to the teachings of Drakes and follow the “formal categorical” approach. IX. Our starting point is clear. Where federal criminal statutes use words of established meaning without further elabora tion, courts typically give those terms their common law definition. The common law spoke in terms of “larceny,” rather than “theft” and the words are used interchangeably. Blackstone defined larceny simply as “the felonious taking and carrying away of the personal goods of another.” 2 Blackstone, Commentaries on the Laws of England, Book TV, at 230 (1879). But in the development of the common law, courts defined larceny in more comprehensive terms. The refined common law description appears to be “the felonious taking by trespass and carrying away by any person of the personal goods or things of another from any place, without the latter’s consent and with the felonious intent to deprive the owner of his or her property permanently and to convert it to the taker’s own use ....” 50 Am.Jur.2d, Larceny § 1. Professor Wayne R. LaFave supplies a concise summary:" }, { "docid": "18079200", "title": "", "text": "must refer to the teachings of Drakes and follow the “formal categorical” approach. IX. Our starting point is clear. Where federal criminal statutes use words of established meaning without further elabora tion, courts typically give those terms their common law definition. The common law spoke in terms of “larceny,” rather than “theft” and the words are used interchangeably. Blackstone defined larceny simply as “the felonious taking and carrying away of the personal goods of another.” 2 Blackstone, Commentaries on the Laws of England, Book TV, at 230 (1879). But in the development of the common law, courts defined larceny in more comprehensive terms. The refined common law description appears to be “the felonious taking by trespass and carrying away by any person of the personal goods or things of another from any place, without the latter’s consent and with the felonious intent to deprive the owner of his or her property permanently and to convert it to the taker’s own use ....” 50 Am.Jur.2d, Larceny § 1. Professor Wayne R. LaFave supplies a concise summary: Larceny at common law may be defined as the (1) trespassory, (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with intent to steal it. American statutes dealing with larceny as a discrete offense have generally left the six elements of the crime unchanged, except that there has been considerable enlargement of the kinds of property which can be the subject of larceny. Wayne R. LaFave, 3 Substantive Criminal Law § 19.2, at 62 (2nd ed.2003) (footnote omitted). Before statutory offenses appeared on the scene, “\\c]hoses in action including bonds and notes of all classes, according to the common law, are not the subject of larceny, being mere rights of action, having no corporeal existence; though ... a person may be indicted for stealing the paper on which they are written.” I Wharton’s Criminal Law § 876, at 766 (10th ed. 1896) (emphasis added). A bank check was considered a chose-in-action excluded from the common law offense of larceny. See Bell v. United States, 462 U.S. 356, 360, 103" }, { "docid": "22803040", "title": "", "text": "common-law extortion when it enacted the Hobbs Act, 18 U. S. C. § 1951. Unfortunately, today’s opinion misapprehends that meaning and misconstrues the statute. I respectfully dissent. I Extortion is one of the oldest crimes in Anglo-American jurisprudence. See 3 E. Coke, Institutes *541. Hawkins provides the classic common-law definition: “[I]t is said, that Extortion in a large Sense signifies any Oppression under Colour of Right; but that in a strict Sense it signifies the Taking of Money by any Officer, by Colour of his Office, either where none at all is due, or not so much is due, or where it is not yet due.” 1 W. Hawkins, Pleas of the Crown 170 (2d ed. 1724) (emphasis added). Blackstone echoed that definition: “[Ejxtortion is an abuse of public justice, which consists in any officer’s unlawfully taking, by colour of his office, from any man, any money or thing of value, that is not due to him, or more than is due, or before it is due.” 4 W. Blackstone, Commentaries 141 (1769) (emphasis added). These definitions pose, but do not answer, the critical question: What does it mean for an official to take money “by colour of his office”? The Court fails to address this question, simply assuming that common-law extortion encompassed any taking by a public official of something of value that he was not “due.” Ante, at 260. The “under color of office” element of extortion, however, had a definite and well-established meaning at common law. “At common law it was essential that the money or property be obtained under color of office, that is, under the pretense that the officer was entitled thereto by virtue of his office. The money or thing received must have been claimed or accepted in right of office, and the person paying must have yielded to official authority.” 3 R. Anderson, Wharton’s Criminal Law and Procedure § 1393, pp. 790-791 (1957) (emphasis added). Thus, although the Court purports to define official extortion under the Hobbs Act by reference to the common law, its definition bears scant resemblance to the common-law crime" }, { "docid": "11447058", "title": "", "text": "if the debt had been secured by specified collateral which had been converted by appellees. See, e. g., McIntyre v. Kavanaugh, 242 U.S. 138, 37 S.Ct. 38, 61 L.Ed. 205 (1916); In re Nance, 556 F.2d 602 (1st Cir. 1977); Probst v. Jones, 262 Mich. 678, 247 N.W. 779 (1933). Then, clearly, we could in good conscience write that appellees had deliberately injured “property” of the appellant. See First National Bank of Lansing v. Padjen, 61 Ill.App.2d 310, 210 N.E.2d 332, 334 (1965) (“That the mortgagee’s interest in the chattel securing a loan is a protectible property cannot be doubted.”). Here, however, there was no willful damage to any “property” of Lasagna; therefore, I am convinced that the lower courts were absolutely correct in holding that Section 17(a)(8) is not applicable. My conviction as to this is fortified when I compare Section 17(a)(8) to Section 17(a)(4), which clearly is applicable. Congress has provided one exception to discharge under the facts as alleged by Lasagna. To interpret Section 17(a)(8) as the majority has done not only is unnecessary, but also, I submit, expands the Section’s meaning beyond all logical reason. I cannot conceive that the Congress, when enacting the Section, intended that its enactment should ever be given such an expansive interpretation. As to the issue involving Section 17(a)(8), I would therefore affirm the judgment of the District Court. . 11 U.S.C. § 35(a)(4). . 11 U.S.C. § 35(a)(8). . Grappling with just such an attempt to define “property,” the Supreme Court wrote: The accurate delimitation of the concept ‘property’ would afford a theme especially apposite for amplificative philosophic disquisition; but the bankrupt law is a prosy thing, intended for ready application to the everyday affairs of practical business, and when construing its terms we are constrained by their usual acceptation in that field of endeavor. * * * * * * At most it [property] denotes something subject to ownership, transfer, or exclusive possession and enjoyment, which may be brought within the dominion and control of a court . through some recognized process. This is certainly the full extent of" }, { "docid": "22750669", "title": "", "text": "his patronage to this institution ? It will scarcely be denied, that he gave up the right any longer to maintain the charity school already established on his own estate; and that the funds collected for its use, and subject to his management, were yielded up by him as an endowment of the college. The very language of the charter supposes him to be the legal owner of the funds of the charity school, and,, in virtue of this endowment, declares him the founder of the college. It matters not whether the funds were great or small; Dr. Wheelock had procured them by his own influence, and they were under' his control, to be applied to the support of *his charity school; and when he relinquished.this control he relinquished a right founded in property acquired by his labours. Besides; Dr. Wheelock impliedly agreed to devote his future services to the college, when erected, by becoming president. thereof at a period when sacrifices must necessarily be made to accomplish the great design in view. If, indeed, a pepper corn be, in the eye of the law, of sufficient value to found a contract, as upon a valuable consideration, are these implied agreements, and these relinquishments of right and benefit, to be deemed wholly worthless ? It has never been doubted, that an agreement not to exercise a trade in a particular place was a sufficient consideration to sustain a contract, for the payment of money. A fortiori, the relinquishment of property which a person holds, or controls the use of, as a trust, is a sufficient consideration ; for it is parting wdth a legal right. Even a right of patronage (jus patronatus) is of great value in intendment of law. Nobody doubts, that an advowson is a valuable hereditament; and yet, in fact, it is but a mere trust, or right of nomination to a benefice, which cannot be legally sold to the intended incumbent. In respect to Dr. Wheelock, then, if a consideration be necessary to support the charter as a contract, it‘ is to be found in the" } ]

[ { "docid": "11504968", "title": "", "text": "the verdict under Rule of Civil Procedure 50, 28 U.S.C.A., raises a question of law only: Whether there is any evidence which, if believed, would authorize a verdict against movant. The trial judge in considering those motions does not exercise discretion, but makes a ruling of law.... ” Marsh v. Illinois Cent. R. Co., 175 F.2d 498, 500 (5th Cir.1949). Discussion The district court found that Tool-trend was not entitled to recover on a theory of unjust enrichment because Tool-trend’s activities promoting Utensili’s trademarks “were conducted to promote ... [Tooltrend’s] own business and without any expectation of compensation.” (Dist. Ct. Op. at 1). On appeal, Tooltrend argues that the district court erred by confusing the separate legal doctrines of quantum meruit and unjust enrichment. Tooltrend argues that, because its claim is based on a contract implied in law, it is entitled to recover regardless of its expectation of compensation, and that the district court therefore misconstrued the law. We first turn to the elements of an unjust enrichment claim in the State of Florida. A claim for unjust enrichment is an equitable claim, based on a legal fiction created by courts to imply a “contract” as a mater of law. Although the parties may have never by word or deed indicated in any way that there was any agreement between them, the law will, in essence, “create” an agreement in situations where it is deemed unjust for one party to have received a benefit without having to pay compensation for it. It derives, not from a “real” contract but a “quasi-contract.” See Commerce Partnership 8098 Ltd. Partnership v. Equity Contracting Co., 695 So.2d 383, 386 (Fla.Dist.Ct.App.1997) (en banc). To succeed in a suit for unjust enrichment a plaintiff must prove that: (1) the plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) the defendant has voluntarily accepted and retained the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff. See Greenfield v. Manor Care, Inc., 705 So.2d" } ]

[ { "docid": "3455466", "title": "", "text": "because of preemption and compliance with federal law, Plaintiffs FDUPTA allegations fall under the safe harbor provision of Fla. Stat. § 501.212(1). This statute states as follows: 501.212. Application This part does not apply to: (1) An act or practice required or specifically permitted by federal or state law. Fla. Stat. § 501.212(1). As set forth above, Plaintiffs claims are not preempted. Accordingly, Defendant’s argument that Plaintiffs clams fall under FDUPTA’s safe harbor provision correspondingly fails. TV. Unjust Enrichment Defendant argues that the unjust enrichment claim fails on the ground set forth in Section III, supra, and also because he has an adequate remedy at law. Upon review, the Court finds that Plaintiff has pleaded his unjust enrichment claim in the alternative to his FDUTPA claim. Further, regarding sufficient pleading of this cause of action, “[a] claim for unjust enrichment has three elements: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant voluntarily accepted and retained that benefit; and (3) the circumstances are such that it would be inequitable for the defendants to retain it without paying the value thereof.” Virgilio v. Ryland Group, Inc., 680 F.3d 1329 (11th Cir.2012) (citing Fla. Power Corp. v. City of Winter Park, 887 So.2d 1237, 1241 n. 4 (Fla.2004)). Here, each of the elements have been adequately pled: (1) Plaintiff conferred a benefit on the defendant by paying the purchase price, see [DE 27] at ¶ 88); (2) Campbell accepted and retained that benefit, ¶ 89; and (3) it would be inequitable for Campbell to retain the purchase price, ¶¶ 90-91. III. CONCLUSION Accordingly, it is ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss Second Amended Complaint [DE 29] is hereby DENIED. . Additionally, it does not necessarily flow that the USDA’s .approval of the label in the chicken soups in is binding on every other federal agency that comes in contact with genetically modified corn. We do not even know whether, when reviewing the label for whether it was \"misleading,” the USDA even knew that the soup contained GMO corn, particularly as there is nothing on the soup" }, { "docid": "19015044", "title": "", "text": "upon the following assessment of the laws of the nine states. Florida Plaintiffs need not plead the unavailability of remedy provided by law to state a claim for unjust enrichment under Florida law. The Supreme Court of Florida has acknowledged that the \"elements of an unjust enrichment claim are 'a benefit conferred upon a defendant by the plaintiff, the defendant's appreciation of the benefit, and the defendant's acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.’ ” Florida Power Corp. v. City of Winter Park, 887 So.2d 1237, 1241 n. 4 (Fla.2004). (citing Ruck Bros. Brick, Inc. v. Kellogg & Kimsey, Inc., 668 So.2d 205, 207 (Fla.Dist.Ct.App.1995)). Lower courts in Florida have held that to \"state a claim for unjust enrichment, a plaintiff must plead the following elements: 1) the plaintiff has conferred a benefit on the defendant; 2) the defendant has knowledge of the benefit; 3) the defendant has accepted or retained the benefit conferred; and 4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.” Golden v. Woodward, 15 So.3d 664, 670 (Fla.Dist.Ct.App.2009); see also Henry M. Butler, Inc. v. Trizec Properties, Inc., 524 So.2d 710, 711-12 (Fla.Dist.Ct.App.1988) (articulating same). Massachusetts The unavailability of an adequate remedy at law is not within the parameters of the prima facie claim for unjust enrichment as articulated by Massachusetts courts: [T]he sine qua non of unjust enrichment is that the defendant has been unjustly enriched. \"Even where a person has received a benefit from another, he is liable to pay therefor only if the circumstances are such that, as between the two persons, it is unjust for him to retain it.” .... The term is not descriptive of conduct which, standing alone, would justify an action for recovery. Unjust enrichment is an essentially equitable doctrine requiring proof of some misconduct, fault or culpable action on the part of the defendant as \"wrongdoer” which renders his retention of a benefit at the expense of another contrary" }, { "docid": "20873361", "title": "", "text": "bank based on claim that “bank knew [Ponzi schemer] to have a criminal history and knew the suspect nature of [Ponzi schemer’s entities], yet allowed [Ponzi schemer] to withdraw large sums of money, in cash, from accounts that were not his personal accounts.”). Accordingly, the Bank has sustained its burden of establishing its mere conduit defense and summary judgment is due to be granted in its favor on the Receiver’s claim of unjust enrichment as to the Exhibit B transactions. 4. Count IV: Unjust Enrichment The Receiver’s final claim for unjust enrichment seeks a disgorgement of fees paid by the hedge funds to the Bank. “A claim for unjust enrichment has three elements: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant voluntarily accepted and retained that benefit; and (3) the circumstances are such that it would be inequitable for the defendants to retain it without paying the value thereof.” Virgilio v. Ryland Group, Inc., 680 F.3d 1329, 1337 (11th Cir.2012) (citations omitted); Florida Power Corp. v. City of Winter Park, 887 So.2d 1237 (Fla.2004). The Bank moves for summary judgment on Count TV on three grounds: the express contract between the parties precludes the ‘quasi-contract’ remedy of unjust enrichment; it would not be inequitable for the Bank to retain the fees, which were payments for services rendered; and fees paid before February 9, 2008 are time barred. The parties disagree as to whether this claim is limited to account service fees or includes interest payments made to the Bank. Although the Third Amended Complaint seeks only “fees” (Dkt. 213 ¶ 125), the Receiver was careful to clarify that he is seeking both service fees and interest payments in an amended interrogatory response. (Dkt. 153-4). Regardless of whether the complaint is construed to include interest payments in addition to account service fees, summary judgment in favor of the Bank is appropriate. a. Express Contract It is well settled in Florida that “... a plaintiff cannot pursue a quasi-contract claim for unjust enrichment if an express contract exists concerning the same subject matter.” Diamond “S” Dev. Corp." }, { "docid": "1241248", "title": "", "text": "if an intentional misrepresentation has been made”). The parties’ motions for summary judgment are therefore denied on PBM’s claim for fraudulent inducement (Count VI). Bookworld’s and Smith’s motion for summary judgment is granted on PBM’s claim for fraud (Count V), and PBM’s motion is denied. E. Unjust Enrichment (Count VIII) In its final counterclaim, PBM alleges that Bookworld and Smith have been unjustly enriched by the retention of the collections not paid under the Agreement and PBM’s inventory. As discussed above, PBM has a viable breach of contract claim against Bookworld, and the existence of an adequate remedy at law defeats a claim for unjust enrichment. Shibata, 133 F.Supp.2d at 1316. Accordingly, Bookworld’s motion for summary judgment is therefore granted on PBM’s claim for unjust enrichment against Book-world, and PBM’s motion on this count against Bookworld is denied. In order to prevail on a claim for unjust enrichment against Smith, PBM must demonstrate: (1) a benefit conferred upon Smith by the PBM, (2) Smith’s appreciation of the benefit, and (3) Smith’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof. Rollins, Inc., 951 So.2d at 876. As previously discussed, PBM has provided no evidence that Smith, individually, appreciated or retained PBM’s collections or inventory. Bookworld’s motion for summary judgment is therefore granted on PBM’s claim for unjust enrichment against Smith, and PBM’s motion on this count against Smith is denied. Conclusion Based on the foregoing, it is ORDERED AND ADJUDGED: 1) Defendant/Counterclaim Plaintiff PBM’s Motion for Summary Judgment (Dkt.57) is GRANTED IN PART as to PBM’s counterclaim for breach of contract against Bookworld (Count I), as more specifically set forth in this Order, and PBM’s claim for conversion of inventory against Bookworld (Count III), as more specifically set forth in this Order; DENIED IN PART as to the remainder of PBM’s counterclaims; and DENIED AS MOOT as to Bookworld’s claims. 2) The Motion for Partial Summary Judgment by Bookworld and Smith (Dkt.58) is GRANTED IN PART as to PBM’s counterclaims for: breach of contract against Smith individually" }, { "docid": "14723081", "title": "", "text": "without knowing Plaintiffs’ identities. Plaintiffs’ argument, in effect, is that to comply with their Johnson duty to disclose, Defendants should have warned the public about Pinecastle when they first learned of its existence. That the Florida Supreme Court would extend the Johnson duty to those standing in Defendants’ shoes is not, in our view, a reasonable claim. We therefore affirm the District Court’s dismissal of Count 1. B. Plaintiffs argue that the District Court erred in dismissing Count 2, their claim for unjust enrichment. They assert that the court erred because it mistakenly concluded that they had not conferred a benefit on Defendants and that it would not be inequitable for Defendants to retain the 1.5 percent of gross sales Ryland paid Terrabrook. We agree with the District Court that Plaintiffs failed to allege that they conferred a benefit on Defendants. A claim for unjust enrichment has three elements: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant voluntarily accepted and retained that benefit; and (3) the circumstances are such that it would be inequitable for the defendants to retain it without paying the value thereof. Fla. Power Corp. v. City of Winter Park, 887 So.2d 1237, 1241 n. 4 (Fla.2004) (quoting Ruck Bros. Brick, Inc. v. Kellogg & Kimsey, Inc., 668 So.2d 205, 207 (Fla.2d Dist.Ct.App.1995)). The crux of Plaintiffs’ argument is that they “indirectly” conferred a benefit on Defendants because the 1.5 percent fee Ryland paid for Defendants’ marketing services represented 1.5 percent of the price Ryland received from Plaintiffs at closing. As support for their argument, Plaintiffs cite the unpublished opinion in MacMorris v. Wyeth, Inc., No. 2:04-cv-596-FTM-29-DNF, 2005 WL 1528626 (M.D.Fla. June 27, 2005), a products liability case in which the plaintiffs claimed, under the theory of unjust enrichment, the money paid by the intermediary from whom they purchased drugs to the manufacturer of the drugs. In ruling on the manufacturer’s motion to dismiss the plaintiffs’ claims, the court rejected the argument that, because the plaintiffs had purchased the drugs through an intermediary, they conferred no benefit on Wyeth. Id. at *4." }, { "docid": "14284", "title": "", "text": "likely adversely influence the trademark owner and the public. Id. This Court finds no merit in Counter-Defendants’ argument that because of their status as “authorized distributors,” they may not be trademark infringers. In viewing the counterclaim in the light most favorable to the non-moving party, as this Court must, we find no limitation, because of the Counter-Defendants’ status or the availability of con tractual remedies, on Counter-Plaintiff alleging trademark infringement. Counter-Defendants’ Motion to Dismiss Counts IV and V is hereby denied. COUNT VI: UNJUST ENRICHMENT The essential elements for an unjust enrichment claim, under Florida law are: (1) a benefit conferred on plaintiff and plaintiffs knowledge thereof; (2) plaintiff voluntarily accepted and retained the benefit conferred; and (3) the circumstances are such that it would be inequitable for plaintiff to retain the benefit without paying the value thereof. Hercules, Inc. v. Pages, 814 F.Supp. 79, 80 (M.D.Fla.1993). There is absolutely no requirement, as alleged by Anthony, that profits obtained by Anthony be diverted from Miller. Miller has sufficiently alleged each of these essential elements for an unjust enrichment cause of action in their Counterclaim, and does withstand a motion to dismiss. Anthony also seek to dismiss Count VI because of the economic loss doctrine. As previously explained in Count II above, there must be damages distinct from the damages resulting from the alleged breach of contract in order to not be barred by the economic loss doctrine. Serina v. Albertson’s Inc., 744 F.Supp. 1113 (M.D.Fla.1990). The damages alleged by Miller are economic damages directly flowing from the alleged breach of contract by Anthony. Miller does not allege damages to the goodwill of its trademark, a property of the corporation. The economic loss doctrine does bar Miller’s claim under Count VI as the cause of action for both breach of contract in Count I and unjust enrichment in Count IV arise from the same purported agreement, same breach, and result in the same economic damages. Because Count VI is barred by the economic loss doctrine, it is unnecessary for this Court to address Anthony’s additional grounds for dismissal for failure to" }, { "docid": "16130492", "title": "", "text": "that term is used in Fla. Stat. § 726.109(1). Because the Trustee has established both elements of her affirmative defense under Fla. Stat. § 726.109(1), she is entitled to summary judgment on Count I of Plaintiffs’ claims for actual fraudulent transfers. And because they are subsequent transferees of the settlement payments, as recipients of the Trustee’s distributions in the Berkman Case, the Synectic Funds and Aleo are also entitled to rely on the defense afforded in Fla. Stat. § 726.109(1), and the Court likewise grants summary judgment in their favor on Plaintiffs’ actual fraudulent transfer claims. D. Count V: Unjust Enrichment To prevail on their claim for unjust enrichment, Plaintiffs must show that (i) they conferred a benefit on the Trustee; (ii) the Trustee has knowledge of the benefit; (iii) the Trustee has accepted or retained the benefit conferred; and (iv) the circumstances are such that it would be inequitable for the Trustee to retain the benefit without paying fair value for it. Where a party obtains a benefit through lawful means, courts will not characterize the circumstances surrounding that party’s acquisition of the benefit as being inequitable or unjust. A typical unjust enrichment claim involves a plaintiff who directly confers a benefit upon a recipient/defendant. In this case, however, Berkman’s action in defrauding Plaintiffs was an intermediate transaction. In cases where a claim for unjust enrichment is based upon an intermediary’s conduct, the recipient/defendant against whom the unjust enrichment claim is asserted is at least generally aware of the relationship between the plaintiff and the intermediary. For example, in Behm v. Cape Lumber Co., a lumber company that provided lumber and trusses to a builder in connection with the builder’s construction of the homeowners’ new home sued the homeowners for unjust enrichment because it had not been paid by the builder. Even if the homeowners were unaware of the specific identity of the plaintiff lumber company, they were generally aware that lumber was necessary for the construction of their house and would have to be paid for. Thus, the homeowners possessed a degree of general knowledge that some entity" }, { "docid": "8783385", "title": "", "text": "in them.” United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1357 (11th Cir.2006) (citations omitted). See also Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir.2001) (citation omitted); Garfield v. NDC Health Corp., 466 F.3d 1255, 1262 (11th Cir.2006). “This means the who, what, when[,] where, and how: the first paragraph of any newspaper story.” Garfield, 466 F.3d at 1262 (citations omitted). “Failure to satisfy Rule 9(b) is a ground for dismissal of a complaint.” Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir.2005), cert. denied, 549 U.S. 810, 127 S.Ct. 42, 166 L.Ed.2d 18 (2006). The Court concludes that the alie gations in Count I, when read in conjunction with the first eighteen paragraphs of the Complaint, sufficiently set forth a claim of fraud as to both individual defendants. Therefore, the motions to dismiss as to this ground will be denied. D. Unjust Enrichment — Count II All defendants argue that the unjust enrichment claim must be dismissed based upon the economic loss rule. The elements for unjust enrichment are that “(1) plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.” Shands Teaching Hosp. & Clinics, Inc. v. Beech St. Corp., 899 So.2d 1222, 1227 (Fla. 1st DCA 2005) (citations omitted). An unjust enrichment claim proceeds on the theory that no express agreement governs the situation. Id. at 1227 n. 10. Since the economic loss rule as applied to this case depends on the existence of a contract, this alternative unjust enrichment count is not barred by the economic loss rule. Duncan v. Kasim, Inc., 810 So.2d 968, 971 (Fla. 5th DCA 2002). The Court also finds that the unjust enrichment count sets forth a plausible claim, and therefore satisfies the federal pleading requirements. The motions to dismiss as to these grounds will be denied. E. Florida Deceptive and Unfair Trade Practices Act — Count III" }, { "docid": "13385061", "title": "", "text": "given for a transfer under bankruptcy fraudulent conveyance statute is “largely a question of fact.”) E. Unjust Enrichment Claims Finally, the parties have filed cross-motions for summary judgment on the Receiver’s claims for unjust enrichment. In order to state a cause of action for unjust enrichment or “quasi contract” under Florida law, the Receiver must demonstrate that: (1) the Receivership LLCs conferred a benefit on Mrs. Waxenberg; (2) Mrs. Waxenberg had knowledge of the benefit; (3) Mrs. Waxenberg accepted or retained the benefit conferred; and (4) circumstances are such that it would be inequitable for Mrs. Waxenberg to retain the benefit without paying fair value for it. Am. Safety Ins. Serv., Inc. v. Griggs, 959 So.2d 322, 331 (Fla. 5th DCA 2007). In the instant motions, the parties dispute the application of the first prong — -whether the Receivership LLCs conferred a benefit on Mrs. Waxenberg — and the fourth prong— whether it would be inequitable for Mrs. Waxenberg to retain the benefit. 1. False profits The Receiver has moved for summary judgment on Count IV, which seeks return of Mrs. Waxenberg’s “false profits.” Again, however, the Receiver’s motion presupposes the existence of a Ponzi scheme. (Dkt. 142 at 24). As there are questions of fact as to this issue, the Receiver’s motion for summary judgment on Count IV is DENIED. 2. Return of principal With respect to the claim for return of principal, the Court finds that there are issues of fact as to whether a benefit was conferred and whether Mrs. Waxenberg paid fair value for it. As this Court previously held in the March 26, 2008 Omnibus Order on the ancillary defendants’ motions dismiss: It is axiomatic that “[w]hen a defendant has given adequate consideration to someone for the benefit conferred, a claim of unjust enrichment fails.” Am. Safety Ins. Serv., Inc., 959 So.2d at 331-332. In a typical, legitimate investment arrangement, it would be difficult to find that investors have been “benefitted” or “enriched” by a return of money equal to the amount they initially invested. The investors’ original investment would furnish adequate consideration for the" }, { "docid": "19810145", "title": "", "text": "contends, Plaintiffs Kelly and Simon lack the requisite proximate cause to sustain RICO claims. Again, however, based on our determination above that Plaintiffs have not pre sented sufficient evidence to support a RICO claim, we need not address this limited issue of proximate cause. F. Unjust Enrichment and Money Had and Received Claims The Palmer Law Firm also seeks entry of judgment in its favor on the remaining claims in the complaint for “money had and received” and unjust enrichment claims (Counts III and IV). In the former, Plaintiffs assert that the firm received and obtained money from them and class members through unfair, unreasonable, and unconscionable practices that conferred no true benefit on class members, and the firm should be required to refund such amounts and cease future collection efforts. In their unjust enrichment count, Plaintiffs claim that the Palmer Law Firm received, and continues to receive, a benefit at the expense of the Monetary Class, by deceptively charging, attempting to collect, and collecting amounts under circumstances in which it would be inequitable for the firm to retain the money. In Florida, the elements of both causes of action are the same. See Equilease Corp. v. Hentz, 634 F.2d 850, 853 (5th Cir.1981) (restitution, unjust enrichment, and an action for money had and received are different names for the same cause of action). To prevail on either of these claims, Plaintiffs must show that (1) they conferred a benefit on the Palmer Law Firm; (2) the firm appreciated such benefit; and (3) acceptance and retention of such benefit by the firm under the circumstances would be inequitable without paying for it. Challenge Air Transport, Inc. v. Transportes Aereos Nacionales, S.A., 520 So.2d 323, 324 (Fla. 3d DCA 1988) (purpose of an action for unjust enrichment is “to prevent the wrongful retention of a benefit, or the retention of money or property of another, in violation of good conscience and fundamental principles of justice or equity”); Moore Handley, Inc. v. Major Realty Corp., 340 So.2d 1238 (Fla. 4th DCA 1976) (an action for money had and receive may be maintained" }, { "docid": "8783386", "title": "", "text": "are that “(1) plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.” Shands Teaching Hosp. & Clinics, Inc. v. Beech St. Corp., 899 So.2d 1222, 1227 (Fla. 1st DCA 2005) (citations omitted). An unjust enrichment claim proceeds on the theory that no express agreement governs the situation. Id. at 1227 n. 10. Since the economic loss rule as applied to this case depends on the existence of a contract, this alternative unjust enrichment count is not barred by the economic loss rule. Duncan v. Kasim, Inc., 810 So.2d 968, 971 (Fla. 5th DCA 2002). The Court also finds that the unjust enrichment count sets forth a plausible claim, and therefore satisfies the federal pleading requirements. The motions to dismiss as to these grounds will be denied. E. Florida Deceptive and Unfair Trade Practices Act — Count III All defendants argue that this claim should be dismissed because it is not properly plead under Fed. R. Crv. P. 9(b) and because Nationwide cannot recover damages since it failed to mitigate its damages. The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) provides for a civil cause of action for “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” § 501.204(1), Fla. Stat. (2005). “A consumer claim for damages under FDUTPA has three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.” City First Mortg. Corp. v. Barton, 988 So.2d 82, 86 (Fla. 4th DCA 2008) (internal citations and quotation omitted). See also KC Leisure, Inc. v. Haber, 972 So.2d 1069, 1073-74 (Fla. 5th DCA 2008). The Court is not convinced that the specificity requirements of Fed. R. Civ. P. 9(b) applies to FDUTPA, although it recognizes this view is in the minority in this District. Contra Stires v. Carnival Corp., 243 F.Supp.2d 1313, 1322" }, { "docid": "13764195", "title": "", "text": "Violation of Section 517.301, Florida Statutes It is uncontroverted that Defendant Shackleford, Farrior, Stallings and Evans is not in privity with Plaintiffs. The Florida Supreme Court has held that to prevail on a claim made under the Florida Securities and Investor Protection Act, Sec. 517.211, Florida Statutes, buyer/seller privity is required. E.F. Hutton, Inc. v. Rousseff 537 So.2d 978, 981. (Fla.1989). In E.F. Hutton, the Florida Supreme Court held the effect of Section 517.211 is similar to that of Section 12(2) of the Securities Act of 1933, “except that whereas Sec. 12(2) protects only buyers, Section 517.211 protects both buyers and seller.” 537 So.2d at 981. In Wilson v. Saintine Exploration and Drilling Corp, 872 F.2d 1124 (2d Cir.1989), the Second Circuit Court of Appeals applied Pinter v. Dahl, 486 U.S. 622, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988) to claims under Sec. 12(2) and held that collateral participants who do not solicit sales cannot be held liable, nor could they be held liable as aiders and abetters. This Court recognizes that Pinter v. Dahl has narrowed the scope of the category of persons who may be liable under Section 12(1) and Section 12(2) of the Securities Act of 1933. There has been no showing that Defendant solicited the subject sale of securities for its financial gain. The Court finds that, as a matter of law, Defendant is not a seller of the securities at issue, or an agent of the seller. The Court grants summary judgment to Defendant as to Count I. Count II Plaintiffs concede that Defendant is entitled to summary judgment as to Count II as a matter of law. (Dkt 57A, p. 8). Count IV Violation of 10b-5 In order to prevail on a 10b-5 claim, Plaintiffs must prove (1) the false representation of a material fact, (2) made with scienter, (3) upon which the plaintiff justifiably relied and (4) that proximately caused the plaintiff’s damages. Diamond v. LaMotte, 709 F.2d 1419 (11th Cir.1983) Defendants contend that (1) Devine’s bonus could not have been the proximate cause of Plaintiffs’ investment loss, and (2) the disclosure contained" }, { "docid": "13764194", "title": "", "text": "F.2d 292 (5th Cir.1969). Factual disputes preclude summary judgment. The Supreme Court of the United States held, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), In our view the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Id. 477 U.S. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273. The Court also said, “Rule 56(e) therefore requires that nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing there is a genuine issue for trial.’ ” Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553, 91 L.Ed.2d at p. 274. The Court is satisfied that no factual dispute remains which precludes the entry of summary judgment. Count I Violation of Section 517.301, Florida Statutes It is uncontroverted that Defendant Shackleford, Farrior, Stallings and Evans is not in privity with Plaintiffs. The Florida Supreme Court has held that to prevail on a claim made under the Florida Securities and Investor Protection Act, Sec. 517.211, Florida Statutes, buyer/seller privity is required. E.F. Hutton, Inc. v. Rousseff 537 So.2d 978, 981. (Fla.1989). In E.F. Hutton, the Florida Supreme Court held the effect of Section 517.211 is similar to that of Section 12(2) of the Securities Act of 1933, “except that whereas Sec. 12(2) protects only buyers, Section 517.211 protects both buyers and seller.” 537 So.2d at 981. In Wilson v. Saintine Exploration and Drilling Corp, 872 F.2d 1124 (2d Cir.1989), the Second Circuit Court of Appeals applied Pinter v. Dahl, 486 U.S. 622, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988) to claims under Sec. 12(2) and held that collateral participants who do not solicit sales cannot be held liable, nor could they be held liable as aiders and abetters. This Court recognizes that Pinter v. Dahl" }, { "docid": "13745818", "title": "", "text": "these representations under Section 17 of the Securities Act of 1933. Under Section 211 of the Florida Act, conduct violative of Section 301 is incorporated into the civil remedy provision. When this is done, F.S.A. § 517.211 becomes in all essential respects identical to the express civil remedy provided by Section 12(2) of the Securities Act of 1933. Both F.S.A. § 517.211 and Section 12(2) provides the same remedy (statutory rescission) where a purchase of securities has been induced by false statements of material fact or omissions to disclose material facts. The Supreme Court of Florida has recently observed that: The effect of section 517.211 is similar to that of federal section 12(2), except that whereas 12(2) protects only buyers, section 517.211 protects both buyers and sellers. E.F. Hutton v. Rousseff, 537 So.2d 978 (1989). The congruity of F.S.A. § 517.211 and § 517.301 to Sections 17 and 12(2) of the Securities Act of 1933 is pervasive. Nor is the congruity the result of mere chance. For over fifty years, the Florida Act has literally incorporated the federal remedies under Florida law. F.S.A. § 517.241(3) provides: The same civil remedies provided by laws of the United States for the purchasers or sellers of securities, under any such laws, in interstate commerce, extend also to purchasers or sellers of securities under this chapter. The Florida Supreme Court has observed that the provision incorporated federal remedies (i.e. Section 12(2) of the Securities Act of 1933) into the Florida Act. Oppenheimer & Co., Inc. v. Young, 456 So.2d 1175 (Fla.1984). In short, the Plaintiffs’ claims as to oral misrepresentations here are not different than the class-wide claims in Kla-wans, factually or legally. The foregoing applies equally to a comparison of the Indiana Act and the Kla-wans class-wide securities anti-fraud claims. The Indiana Act is in all pertinent aspects identical to the Florida Act. Ind. Code § 23-2-1-19. This Court should adopt and follow the ruling of the Second Circuit in Cullen, and hold that, under the circumstances of this case, American Pipe tolling applies to Plaintiffs’ anti-fraud claims under the Florida and Indiana" }, { "docid": "7500488", "title": "", "text": "keep them a very productive and profitable account constitutes misrepresentations in connection with the purchase or sale of securities. As this Court previously held: With respect to the ‘in connection with’ component it is evident to this Court that the Plaintiff’s alleged misrepresentation was intended to induce Defendants to continue trading securities through First Union. Milos, 111 F.Supp. at 1523. However, as more fully set forth below in this Court’s discussion of Count II of the Milos’ Amended Counterclaim, this Court finds that there is no genuine issue of material fact that First Union is not liable for common law fraud. Accordingly, this Court similarly finds that there is no genuine issue of material fact that First Union did not make any misrepresentations in violation of Fla. Stat. § 517.301, upon which the Milos’ justifiably relied to their detriment. 2. Common Law Fraud — Count II In Count II of their Amended Counterclaim, the Milos’ assert a claim for common law fraud. To prevail on a claim for common law fraud, a party must prove the following: (i) a false statement concerning a material fact; (ii) knowledge by the maker of the statement that the representation is false; (iii) intent by the maker of the statement that the representation will induce another to act on it; and (iv) justifiable reliance on the representation to another’s detriment. Lance v. Wade, 457 So.2d 1008, 1011 (Fla.1984); Milos, 717 F.Supp. at 1524-25. Though fraud requires that a misrepresentation be intentional, this element may be satisfied by evidence of reckless or mere negligent conduct. Gochnauer, 810 F.2d at 1046. If the intentional misrepresentation is made in connection with a promise to do some act in the future, the party alleging fraud must further prove “that the promis- or either lacked the intention to perform the promise or specifically intended not to perform at the time that the representation was made.” Milos, 717 F.Supp. at 1525 (citing Royal Typewriter Co. v. Xerographic Supplies Corp., 719 F.2d 1092, 1104 (11th Cir.1983)). Merely breaking a promise to perform an act in the future does not constitute fraud." }, { "docid": "19015043", "title": "", "text": "the unavailability of an adequate remedy at law is not a consideration in an unjust enrichment claim: \"A claimant otherwise entitled to a remedy for unjust enrichment, including a remedy originating in equity, need not demonstrate the inadequacy of available remedies at law.” Id. § 4(2). As the comment to Section 4(2) explains: “Although some remedies in restitution are indeed equitable in origin, there is no requirement that a claimant who seeks any of the remedies described in this Restatement must first demonstrate the inadequacy of a remedy at law. An argument to the contrary should appear antiquated today, but § 4(2) is included to remove any doubt.” See also 1 George E. Palmer, Law of Restitution § 1.6 at 34 (1978) (“Although an occasional decision suggests that restitution will be denied when alternative remedies are considered adequate, innumerable cases demonstrate that this is incorrect.” (footnote omitted)). Moreover, the Restatement does not include \"adequate remedy at law” among the possible defenses to unjust enrichment. See id. §§ 62-70. . The Court reaches this conclusion based upon the following assessment of the laws of the nine states. Florida Plaintiffs need not plead the unavailability of remedy provided by law to state a claim for unjust enrichment under Florida law. The Supreme Court of Florida has acknowledged that the \"elements of an unjust enrichment claim are 'a benefit conferred upon a defendant by the plaintiff, the defendant's appreciation of the benefit, and the defendant's acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.’ ” Florida Power Corp. v. City of Winter Park, 887 So.2d 1237, 1241 n. 4 (Fla.2004). (citing Ruck Bros. Brick, Inc. v. Kellogg & Kimsey, Inc., 668 So.2d 205, 207 (Fla.Dist.Ct.App.1995)). Lower courts in Florida have held that to \"state a claim for unjust enrichment, a plaintiff must plead the following elements: 1) the plaintiff has conferred a benefit on the defendant; 2) the defendant has knowledge of the benefit; 3) the defendant has accepted or retained the benefit conferred; and 4) the circumstances are such" }, { "docid": "4981586", "title": "", "text": "Count V. Fraud requires “(1) a false representation regarding a material fact; (2) known to be false when made or made with reckless indifference to the truth; (3) for the purpose of deceiving or defrauding the person claiming injury; (4) that action was taken in reliance upon the misrepresentation, and the person had a right to rely upon it; and (5) that actual damage was suffered resulting from the misrepresentation,” A Love of Food I, LLC v. Maoz Vegetarian USA, Inc., 70 F.Supp.3d 376, 415 (D.D.C. 2014) (citing Blake Constr. Co. v. C.J. Coakley Co., 431 A.2d 569, 577 (D.C. 1981)). “A fraud plaintiff must prove each of these factors by clear and convincing evidence,” and if he is unable to do so, then the entire claim fails. Redmond v. Birkel, 933 F.Supp. 1, 3-4 (D.D.C. 1996). Armstrong challenges the government’s common-law fraud claim on the same grounds as he does its FCA fraud-in-the-inducement theory: That the government cannot prove as a matter of law that USPS relied upon Armstrong’s misrepresentations or fraudulent behavior. As previously noted, however, the government has offered evidence raising a genuine dispute as to whether USPS officials relied on the defendants’ doping denials when making decisions regarding the sponsorship. See supra Section III.B.2.a. This material dispute alone saves the government’s common-law fraud claim at this stage of proceedings. The government does not have to show, as Armstrong argues, that it took additional steps to . investigate the doping allegations or otherwise confirm the truth of Armstrong’s, denials. Therefore, the Court will deny Armstrong summary judgment on the government’s common-law fraud claim. 5. Unjust Enrichment The government also claims, in Count VI of its complaint, that Armstrong was unjustly enriched at the government’s expense. Gov’t’s Compl. Count VI. The parties agree that to prevail on an unjust enrichment claim, a plaintiff must prove that “(1) the plaintiff conferred a benefit on the defendant; (2) the- defendant- retains the benefit; and (3) under the circumstances, the defendant’s retention of the benefit is unjust.” In re APA Assessment Fee Litigation v. APA, 766 F.3d 39, 45-46 (D.C. Cir." }, { "docid": "7822972", "title": "", "text": "over those common to the class”). Thus, plaintiffs must show that ConAgra’s allegedly misleading representation was “likely to mislead a reasonable consumer acting reasonably under the circumstances, i.e., the plaintiffs circumstances.” Id. at 1282 (citing Solomon v. Bell Atl. Corp., 9 A.D.3d 49, 777 N.Y.S.2d 50 (2004)); Fitzpatrick v. General Mills, Inc., 263 F.R.D. 687, 697 (S.D.Fla.2010) (“[B]eeause each plaintiff seeking damages under the FDUTPA is only required to prove that [defendant’s] conduct would deceive an objective reasonable consumer, and not that the deceptive act motivated their particular purchase decision ... the putative class members would rely on the same pool of evidence to prove their claims”). The court considers infra whether plaintiffs have shown that the “100% Natural” statement was material and thus likely to mislead a reasonable consumer. (b) Unjust Enrichment The essential elements that must be shown to prove unjust enrichment under Florida law are a benefit conferred on the defendant by the plaintiff, the defendant’s appreciation of the benefit, and the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for it to retain the benefit without paying the value thereof. Swindell v. Crowson, 712 So.2d 1162, 1163 (Fla.App.1998) (citing Ruck Brothers Brick v. Kellogg & Kimsey, 668 So.2d 205 (Fla.App.1995); Rite-Way Painting & Plastering v. Tetor, 582 So.2d 15 (Fla.App.1991)); see also Florida Power Corp. v. City of Winter Park, 887 So.2d 1237, 1241 n. 4 (Fla.2004); Rollins, Inc. v. Butland, 951 So.2d 860, 876 (Fla.App.2006). Florida courts have concluded that privity is not a required element of an unjust enrichment claim. See MacMorris v. Wyeth, Inc., No. 2:04-CV-596-FTM-29DNF, 2005 WL 1528626, *4 (M.D.Fla. June 27, 2005) (observing that “indirect purchasers have been allowed to bring an unjust enrichment claim against a manufacturer”). Plaintiffs argue that predominance is satisfied because “[c]ourts have found that common questions predominate for Florida unjust enrichment claims where defendant’s conduct was the same as to all class members.” Plaintiffs are correct that some Florida courts have certified unjust enrichment classes where the defendant’s business practices were the same as to all class members and defendant failed" }, { "docid": "14283", "title": "", "text": "does not involve an “authorized user,” there is nothing in the Lanham Act to suggest Anthony should be immunized from trademark infringement merely because of their status. In fact, 15 U.S.C. § 1114(1) specifically states, in part: Any person who shall, without the consent of the registrant— (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection -with the sale ... of any goods or services on or in connection with which such use is likely to cause confusion ... shall be liable in a civil action by the registrant---- 15 U.S.C. § 1114(1). Anthony clearly does not have the consent of the registrant to sell a product which does not adhere to the quality control standards of the trademark owner. Additionally, it is important to note that the Lanham Act has not been strictly construed to require literal reproduction, counterfeit, copy or colorable imitation. Adolph, 486 F.Supp. 131, 135 (D.Colo.1980). The Act has been liberally construed to prevent misappropriation of the goodwill of the trademark which will likely adversely influence the trademark owner and the public. Id. This Court finds no merit in Counter-Defendants’ argument that because of their status as “authorized distributors,” they may not be trademark infringers. In viewing the counterclaim in the light most favorable to the non-moving party, as this Court must, we find no limitation, because of the Counter-Defendants’ status or the availability of con tractual remedies, on Counter-Plaintiff alleging trademark infringement. Counter-Defendants’ Motion to Dismiss Counts IV and V is hereby denied. COUNT VI: UNJUST ENRICHMENT The essential elements for an unjust enrichment claim, under Florida law are: (1) a benefit conferred on plaintiff and plaintiffs knowledge thereof; (2) plaintiff voluntarily accepted and retained the benefit conferred; and (3) the circumstances are such that it would be inequitable for plaintiff to retain the benefit without paying the value thereof. Hercules, Inc. v. Pages, 814 F.Supp. 79, 80 (M.D.Fla.1993). There is absolutely no requirement, as alleged by Anthony, that profits obtained by Anthony be diverted from Miller. Miller has sufficiently alleged each of these essential elements for" }, { "docid": "11222464", "title": "", "text": "Count IX fails to state a claim for unjust enrichment because the non-Ohio Plaintiffs have failed to plead facts showing that Whirlpool’s conduct was “wrongful” in any meaningful way. Whirlpool further says that Count IX fails as to Plaintiff Sandholm-Pound (New Jersey) because the MCAC does not allege that she purchased her washer directly from Whirlpool, as required under New Jersey law. [Doc. 22 at 48-50.] Although the precise elements of unjust enrichment vary from state to state, an unjust enrichment claim generally requires the plaintiff to allege that she has conferred a benefit on the defendant, that the defendant knows it has received that benefit, and that the defendant has “wrongfully,” “inequitably,” or “unjustly” retained that benefit. See, e.g., Trustmark Ins. Co. v. Bank One, 202 Ariz. 535, 48 P.3d 485, 491 (Ariz.Ct.App.2002) (“To establish a claim for unjust enrichment, a party must show: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) the absence of justification for the enrichment and the impoverishment; and (5) the absence of a legal remedy.”); Shands Teaching Hosp. & Clinics, Inc. v. Beech St. Corp., 899 So.2d 1222, 1227 (Fla.Dist.Ct.App.2005) (“The elements of a cause of action for unjust enrichment are: (1) plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.”); Assoc. Commercial Corp. v. Wallia, 211 N.J.Super. 231, 511 A.2d 709, 716 (N.J.Super.Ct.App.Div.1986) (“To recover under this doctrine, the plaintiff must prove that the defendant received a benefit, and that retention of the benefit without payment therefor would be unjust.”). Nevertheless, citing only to Bettua v. Sears, Roebuck and Co., No. 08 C 1832, 2009 WL 230573, at *5 (N.D.Ill. Jan. 30, 2009), Whirlpool argues that an unjust enrichment claim requires an allegation that it engaged in “wrongful” conduct. [Doc. 22 at 49-50.] The law of unjust enrichment, however, requires no such showing. Rather than describing the" } ]

[ { "docid": "5405159", "title": "", "text": "It has been the rule in equity receivership cases that the bill must be dismissed for want of equity if it is not filed in good faith as, for example, when its purpose is to hinder or delay creditors. Shapiro v. Wilgus, 287 U.S. 348, 53 S.Ct. 142, 77 L.Ed. 355, 85 A.L.R. 128; First National Bank v. Flershem, 290 U.S. 504, 54 S.Ct. 298, 78 L.Ed. 465, 90 A.L.R. 391; Harkin v. Brundage, 276 U.S. 36, 48 S.Ct. 268, 72 L.Ed. 457. Under section 77B(a) of the Bankruptcy Act the District Judge must dismiss the entire proceedings when want of good faith on the part of the debtor appears. Tennessee Publishing Co. v. American Bank, 299 U.S. 18, 22, 57 S.Ct. 85, 87, 81 L.Ed. 13. In a reorganization proceeding under section 77B good faith means more than honesty of purpose. It also requires that ■there be a reasonable possibility of successful reorganization. Wright v. Vinton Branch Bank, 300 U.S. 440, 463, 57 S.Ct. 556, 562, 81 L.Ed. 736; Tennessee Publishing Co. v. American Bank, supra; In re Tennessee Publishing Co., 6 Cir., 81 F.2d 463; In re Loeb Apartments, 7 Cir., 89 F.2d 461; Manati Sugar Co. v. Mock, 2 Cir., 75 F.2d 284; O’Connor v. Mills, 8 Cir., 90 F.2d 665; Provident Ins. Co. v. University Church, 9 Cir., 90 F.2d 992. Whenever want of good faith appears the debtor’s petition should be dismissed even though a plan of reorganization has not been submitted. The District Court was reversed for failure to dismiss in such a case in Provident Ins. Co. v. University Church, supra, in Re Wisun & Golub, 2 Cir., 84 F.2d 1, and in Re North Kenmore Corporation, 7 Cir., 81 F.2d 656. The judgment of the District Court dismissing the petition for want of good faith was affirmed in O’Connor v. Mills, supra; in Manati Sugar Co. v. Mock, supra; and in Re Grigsby-Grunow Co., 7 Cir., 77 F.2d 200. In Brockett v. Winkle Terra Cotta Co., 8 Cir., 81 F.2d 949, 953, Judge Van Valkenburgh, speaking for this court, said in reference" } ]

[ { "docid": "17139969", "title": "", "text": "Section 77B cannot.be used to aid stockholders at the expense of bondholders or other creditors, or for the purpose of continuing in business a corporation hopelessly insolvent and unable to prosecute its business with any reasonable prospect of success. Brockett v. Winkle Terra Cotta Co., 8 Cir., 81 F.2d 949, 953; First National Bank v. Conway Road Estates Co., 8 Cir., 94 F.2d 736, 739; Price v. Spokane Silver & Lead Co., 8 Cir., 97 F.2d 237, 245, 246. Stockholders may not better their position at the cost of bondholders or other creditors; and to justify a retention of a stock interest by stockholders of a debtor it must appear that they have furnished some compensatory additional consideration or have an equity in the estate of the debtor after the rights of creditors are fully provided for. See In re Barclay Park Corporation, 2 Cir., 90 F.2d 595, 597, 598; In re Day & Meyer, Murray & Young, Inc., 2 Cir., 93 F.2d 657; O’Connor v. Mills, 8 Cir., 90 F.2d 665, 666, 667; Reading Hotel Corp. v. Protective Committee, 3 Cir., 89 F.2d 53; Wayne United Gas Co. v. Owens-Illinois Glass Co., 4 Cir., 91 F.2d 827, 832; Price v. Spokane Silver & Lead Co., supra, at page 245. Compare, In re 620 Church Street Bldg. Corp., 299 U.S. 24, 27, 57 S.Ct. 88, 89, 81 L.Ed. 16. It is the duty of the court of bankruptcy to carefully scrutinize plans of reorganization ptoposed for insolvent companies to make certain that the assets belonging to creditors are not, by indirection, diverted to stockholders. In re New York Railways Corp., 2 Cir., 82 F.2d 739, 744; In re Day & Meyer, Murray & Young, Inc., supra, at page 659; Price v. Spokane Silver & Lead Co., supra, at page 245. Even if a large majority of the creditors have approved a plan, that is’ of no avail to sustain it if it is unfair, discriminatory, inequitable or not feasible. In re Barclay Park Corporation, supra, 90 F.2d 595; First National Bank v. Flershem, 290 U.S. 504, 517-519, 54 S.Ct. 298," }, { "docid": "2945626", "title": "", "text": "related to the particular business and is very largely a problem individual to the particular business. Among other elements, it involves an understanding of how and why the business came into difficulty; of what the difficulty is; of the present condition of the business and of the property; of whether there is a fair prospect that the business can be continued under some readjustment of rights; of what readjustment is workable to that end. Such understanding requires knowledge of the financial, management, and business history of the concern; of the extent, character, and condition of both assets and liabilities; of the past, present, and probable prospective earnings and expenses. Based upon such knowledge and understanding, a plan must be evolved which offers a reasonable prospect of success. In working out such plan, the rights of interested parties must be preserved through a ‘fair’ right of participation therein.” In order to acquire knowledge of the financial, management and business history of a concern; of the extent, character and condition of both assets and liabilities; of the past, present and probable prospective earnings and expenses, and of whether a plan proposed offers a reasonable prospect of success and is workable, there must be competent, definite, concrete, and reliable evidence from which such facts may be ascertained by the court. From the evidence in the record before us, it is impossible to gather any knowledge of the business history of the debtor, or of its past, present and probable prospective earnings and expenses. About all that the record shows-is that from some time in 1933 the debtor has been in the hands of the courts. There is no evidence to show that if it is reorganized it can be operated profitably or that it has at any time been operated profitably. There is no evidence to justify a conclusion that it can obtain the necessary funds without which, concededly, no further development or operation of the mines can take place. In First Nat. Bank v. Conway Road Estates Co., 8 Cir., 94 F.2d 736, 739, Judge Thomas, in delivering the opinion of this" }, { "docid": "22400279", "title": "", "text": "287 U.S. 348, 53 S.Ct. 142, 77 L.Ed. 355. . Tinkoff, 85 F.2d 305 (7th Cir. 1936). . Sieben, 89 F.2d 935 (7th Cir. 1937). . Fullagar, 8 F.Supp. 602 (N.Y.1934). . Paul, 13 F.Supp. 645 (C.D.Iowa 1936). . Noble, 19 F.Supp. 504 (D.N.J.1937); Brewster, 20 F.Supp. 789 (W.D.La.1937); Cresap, 99 F.2d 722 (7th Cir. 1938). . Brown, 21 F.Supp. 935 (Iowa 1938). . Olsen, 21 F.Supp. 504 (Iowa 1937). . Vater, 14 F.Supp. 631 (E.D.Ky.1936). . John Hancock Life Ins. Co. v. Bartels, 308 U.S. 180, 60 S.Ct. 221, 84 L.Ed. 176 (1939). . Wisun & Golub, Inc., 84 F.2d 1 (2d Cir. 1936). . Loeb Apartments, 89 F.2d 461 (7th Cir. 1937). . O’Conner v. Mills, 90 F.2d 665 (8th Cir. 1937). . New York Title & Mortgage Co., 9 F.Supp. 319 (N.D.N.Y.1939); R. L. Witters Assoc. v. Ebsary Gypsum Co., 93 F.2d 746 (5th Cir. 1938); Price v. Spokane Silver & Lead Co., 97 F.2d 237 (8th Cir. 1938). . In re Cook, 104 F.2d 981 (7th Cir. 1939). . Piccadilly Realty Co., 78 F.2d 257 (7th Cir. 1935). . Stanley Drug Co., 22 F.Supp. 664 (1938 Pa.). . Tenn. Publishing Co., 81 F.2d 463 (6th Cir. 1936); Provident Mut. Life Ins. Co. v. University L. Ev. Church, 90 F.2d 992 (9th Cir. 1937); First Nat’l Bank v. Conway Road Estates Co., 94 F.2d 736 (8th Cir. 1938). . Wright v. Vinton Branch, 300 U.S. 440, 57 S.Ct. 556, 81 L.Ed. 736 (1937). . See cases collected in Wright v. Vinton Branch, supra, especially footnote 6 at page 462, footnote 6 at page 562. . John Hancock Life Ins. Co. v. Bartels, 308 U.S. 180, 60 S.Ct. 221, 84 L.Ed. 176 (1939). .Bankruptcy Act, Section 146(3). . “Thus, adherence to the normal procedure in Chapter XII cases should not produce any inordinate delay, and there is always the possibility that facts will be brought out at the creditors’ meeting, including the attitude of the creditors themselves, which will throw new light upon the proceeding. For this reason we think it better that the court adhere to the" }, { "docid": "22400266", "title": "", "text": "85 L.Ed. 91 (1940). Cases dealing with “good faith” in the context of Section 77B: a. Actual intent and purpose to effect a reorganization: In re Southcoast Co., 8 F.Supp. 43 (Del.1934). b. Not truly a creditor’s petition: Philadelphia Rapid Transit Co., 8 F.Supp. 51 (E.D.Pa.1934). c. Futile! No reorganization plan possible: New York Title & Mortgage Co., 9 F.Supp. 319 (N.D.N.Y.1934). d. Plan can be formulated later: In re Kelly Springfield Tire Co., 10 F.Supp. 414 (1935 Md.). e. To save sinking debtor from drowning: In re Kelly Springfield Tire Co., 10 F.Supp. 414 (1935 Md.). f. No precise definition — look to court’s discretion: Prairie Ave. Bldg. Corp., 11 F.Supp. 125 (Ill.1935). g. Some possibility of a successful reorganization: 2747 Milwaukee Ave. Bldg. Corp., 12 F.Supp. 557 (1935 N.D.Ill.). Grigsby-Grunow, 77 F.2d 200 (7th Cir. 1935); Provident Mutual Life Ins. Co. v. University Ev. L. Church, 90 F.2d 992 (9th Cir. 1937); Detroit Trust Co. v. Campbell River Timber Co., 98 F.2d 389 (9th Cir. 1938); Snyder v. Fenner, 101 F.2d 736 (3d Cir. 1939); In re Mt. Forest Fir Farms of America, 103 F.2d 69 (6th Cir. 1939); White v. Pennelas Mining Co., 105 F.2d 726 (9th Cir. 1939). h. Corporation formed to acquire property on eve of foreclosure: In re Francfair, Inc., 13 F.Supp. 513 (1935 N.Y.). i. Going concern value already eliminated: In re Dutch Woodcraft Shops, 14 F.Supp. 467 (Mich.1935). j. Prompt submission of a Plan: Phila. Rapid Transit Co., 16 F.Supp. 941 (Pa.1936). k. No alternative to immediate liquidation: Stanley Drug Co., 22 F.Supp. 664 (1938 Pa.). l. Parties cannot buy their way into court: In re Hudson Coal Co., 22 F.Supp. 768 (1938 Pa.). m. Purity of motives insufficient: Hudson Coal, 22 F.Supp. 768 (1938 Pa.). n. Honesty and good intentions insufficient: Manati Sugar Co. v. Mock, 75 F.2d 284 (2d Cir. 1934). o. Financial salvation based on abiding faith in miracles: Tenn. Publishing Co., 81 F.2d 463 (1936 6th Cir.); Provident Mut. Life Ins. Co. v. University Ev. L. Church, 90 F.2d 992 (9th Cir. 1937); First Nat'l Bank v. Conway" }, { "docid": "8377785", "title": "", "text": "that the situation of the present debtor was not beyond all reasonable hope of rehabilitation, else he could not have qualified to file his petition at the outset. Compare Tennessee Publishing Co. v. American National Bank, 299 U.S. 18, 22, 57 S.Ct. 85, 81 L.Ed. 13.” Appellant seeks to avoid the effect of the portion of the Supreme Court’s opinion which holds that the right of a farmer-debtor to be adjudged a bankrupt and to remain in bankruptcy under Section 75 (s) is not an absolute right, by asserting that footnote 6; on pages 462 and 463, 57 S.Ct. page 562, is not part of the opinion in that case and does not accurately represent the views of the Supreme Court, and that that Court in several subsequent decisions ' has made that clear. No case called to our attention sustains this assertion of the appellant. We have no reason to believe that the opinion delivered by Mr. Justice Brandeis,-including the footnote on pages 462 and 463, 57 S.Ct. page 562, does not mean’ exactly what the - language used signifies, namely, that the Court of bankruptcy has the power and discretion to dismiss a petition for adjudication under Section 75 (s) whenever it appears that no reasonable hope for the financial rehabilitation of the debt- or exists and that the liquidation of his property is inevitable. The cases of First National Bank & Trust Co. v. Beach, 301 U.S. 435, 57 S.Ct. 801, 81 L.Ed. 1206, and Adair v. Bank of America, etc., Ass’n, 303 U.S. 350, 58 S.Ct. 594, 82 L.Ed. 889, do not deal with the question here presented. That this Court is committed to the view that the Supreme Court in Wright v. Vinton Branch, supra, held that a ’ court of bankruptcy might dismiss a petition for rehabilitation of a farmer-debtor , under Section 75 (s), is indicated by the opinion in First Nat. Bank v. Conway Road Estates Co., 8 Cir., 94 F.2d 736, 739. In that opinion, after citing the case of Wright v. Vinton Branch, supra, among other -cases, Judge Thomas said" }, { "docid": "22400267", "title": "", "text": "Cir. 1939); In re Mt. Forest Fir Farms of America, 103 F.2d 69 (6th Cir. 1939); White v. Pennelas Mining Co., 105 F.2d 726 (9th Cir. 1939). h. Corporation formed to acquire property on eve of foreclosure: In re Francfair, Inc., 13 F.Supp. 513 (1935 N.Y.). i. Going concern value already eliminated: In re Dutch Woodcraft Shops, 14 F.Supp. 467 (Mich.1935). j. Prompt submission of a Plan: Phila. Rapid Transit Co., 16 F.Supp. 941 (Pa.1936). k. No alternative to immediate liquidation: Stanley Drug Co., 22 F.Supp. 664 (1938 Pa.). l. Parties cannot buy their way into court: In re Hudson Coal Co., 22 F.Supp. 768 (1938 Pa.). m. Purity of motives insufficient: Hudson Coal, 22 F.Supp. 768 (1938 Pa.). n. Honesty and good intentions insufficient: Manati Sugar Co. v. Mock, 75 F.2d 284 (2d Cir. 1934). o. Financial salvation based on abiding faith in miracles: Tenn. Publishing Co., 81 F.2d 463 (1936 6th Cir.); Provident Mut. Life Ins. Co. v. University Ev. L. Church, 90 F.2d 992 (9th Cir. 1937); First Nat'l Bank v. Conway Road Estates Co., 94 F.2d 736 (1938 8th Cir.). p. Individuals clothed in corporate garb to take advantage of the statute: North Kenmore Bldg. Corp., 81 F.2d 656 (1936 2d Cir.). Knickerbocker Hotel Co., 81 F.2d 981 (7th Cir. 1936); Milwaukee Postal Bldg. Corp. v. McCann, 95 F.2d 948 (8th Cir. 1938). q. The debtor that secretes assets: Wisen & Golub, Inc., 84 F.2d 1 (2d Cir. 1936). r. Is it to delay creditors or to invoke the operation of the statute in the spirit intended by Congress? Loeb Apartments, 89 F.2d 461 (7th Cir. 1937). s. Visionary or unpracticable schemes for resuscitation: O'Connor v. Mills, 90 F.2d 665 (8th Cir. 1937). t. The potential that a plan can be filed which is fair, equitable, and feasible: Wayne United Gas Co. v. Owens-Ill. Glass Co., 91 F.2d 827 (4th Cir. 1937). u. No reasonable possibility the debtor can conform to or obtain benefit of the statute: R. L. Witters Assocs. v. Ebsary Gypsum Co., 93 F.2d 746 (5th Cir. 1938); Price v.Spokane Silver & Lead" }, { "docid": "5405158", "title": "", "text": "until after final decree.’ The exclusive jurisdiction given the court over the debtor and his property, subdivision (a), 11 U.S.C.A. § 207(a), does not imply that the commencement or the carrying on of suits against the. debtor must be enjoined or that all claims must be referred to a master for consideration and report. Subdivision (c) (11), 11 U.S.C.A. § 207(c) (11).“ See In re Prudence Bonds Corporation (C.C.A.) 75 F.2d 262, 263. The power to stay does not imply that it is to be, or appropriately may be, exprted without regard to the facts. The granting or withholding of injunction is left to the discretion of the court.” The vital question here is whether or not upon the undisputed facts the court abused his discretion in denying appellant’s motion to dissolve the injunction. We therefore turn to an examination of the circumstances which control the discretion of the District Court with respect to the right of the debtor to enjoin the foreclosure sale and the correlative right of the appellant to freedom from restraint. It has been the rule in equity receivership cases that the bill must be dismissed for want of equity if it is not filed in good faith as, for example, when its purpose is to hinder or delay creditors. Shapiro v. Wilgus, 287 U.S. 348, 53 S.Ct. 142, 77 L.Ed. 355, 85 A.L.R. 128; First National Bank v. Flershem, 290 U.S. 504, 54 S.Ct. 298, 78 L.Ed. 465, 90 A.L.R. 391; Harkin v. Brundage, 276 U.S. 36, 48 S.Ct. 268, 72 L.Ed. 457. Under section 77B(a) of the Bankruptcy Act the District Judge must dismiss the entire proceedings when want of good faith on the part of the debtor appears. Tennessee Publishing Co. v. American Bank, 299 U.S. 18, 22, 57 S.Ct. 85, 87, 81 L.Ed. 13. In a reorganization proceeding under section 77B good faith means more than honesty of purpose. It also requires that ■there be a reasonable possibility of successful reorganization. Wright v. Vinton Branch Bank, 300 U.S. 440, 463, 57 S.Ct. 556, 562, 81 L.Ed. 736; Tennessee Publishing Co. v. American" }, { "docid": "21538832", "title": "", "text": "clause (1) of this section appear and controvert the facts alleged in the petition or answer, the judge shall determine as soon as may be the issues presented by the pleadings, without the intervention of a jury, and unless the material allegations of the petition or answer are sustained by the proofs, the proceedings shall be dismissed.” It was under the latter of these provisions that the creditors, appellees, filed their motions to dismiss and the dismissal was had. Procedurally, therefore, the attack upon the petition was in order, and the judgment of dismissal must stand, if supported by the record. For though after final approval of the petition, as filed in good faith, the court retains full control over the proceeding to dismiss it if satisfied no feasible reorganization can be effected, it may, upon the issue of good faith made as here by contesting creditors before the stage of filing and considering plans, as provided for in subsections (c), (d), (e), as amended, and (f) of section 77B the act, 11 U.S.C.A. § 207 (c-f), has been reached, inquire into the situation of the debtor, and as to the feasibility of a reorganization under the act. It should not, however, before the stage of plan submitting has arrived, examine into the feasibility of reorganization with the searching intensity required, when a plan or plans having been submitted by the petitioner, the good faith, and feasibility of plans for reorganization come directly up. A recognition of. this difference in emphasis upon the question of plan and of reorganization feasibility, when, by an attack upon the good faith of a proposed submitted plan these matters are directly up, and when, by an attack upon the petition, as not filed in good faith they are only incidentally or collaterally up, is sufficiently, we think, if not always clearly, manifested in the cases. O’Connor v. Mills, 8 Cir., 90 F.2d 665; Manati Sugar Co. v. Mock, 2 Cir., 75 F.2d 284; In re Augustyn, 7 Cir., 87 F.2d 577; Tennessee Pub. Co. v. American Nat. Bank, 299 U.S. 18, 57 S.Ct. 85," }, { "docid": "22400280", "title": "", "text": "Co., 78 F.2d 257 (7th Cir. 1935). . Stanley Drug Co., 22 F.Supp. 664 (1938 Pa.). . Tenn. Publishing Co., 81 F.2d 463 (6th Cir. 1936); Provident Mut. Life Ins. Co. v. University L. Ev. Church, 90 F.2d 992 (9th Cir. 1937); First Nat’l Bank v. Conway Road Estates Co., 94 F.2d 736 (8th Cir. 1938). . Wright v. Vinton Branch, 300 U.S. 440, 57 S.Ct. 556, 81 L.Ed. 736 (1937). . See cases collected in Wright v. Vinton Branch, supra, especially footnote 6 at page 462, footnote 6 at page 562. . John Hancock Life Ins. Co. v. Bartels, 308 U.S. 180, 60 S.Ct. 221, 84 L.Ed. 176 (1939). .Bankruptcy Act, Section 146(3). . “Thus, adherence to the normal procedure in Chapter XII cases should not produce any inordinate delay, and there is always the possibility that facts will be brought out at the creditors’ meeting, including the attitude of the creditors themselves, which will throw new light upon the proceeding. For this reason we think it better that the court adhere to the normal procedures prescribed in Chapter XII. We think the debtors are engaging in an exercise of futility and appreciate the trial court’s desire to terminate the proceedings. Reluctantly the judgment is reversed and the case remanded.” Sumida v. Yumen, 409 F.2d 654 at 660 (1969). . In re Colonial Realty Investment Co., 516 F.2d 154 (1st Cir. 1975); Ira Haupt Co. v. Klebanow, 348 F.2d 907 (2d Cir. 1965); Bolton Hall Nursing Home, 432 F.Supp. 528 (D.C.Mass.1977); Mallard Associates, 574 F.Supp. 1045 (S.D.N.Y.1979); Mallard Associates, 574 F.Supp. 1045 (S.D.N.Y.1975). . I.e., bankruptcy courts. American Ins. Co. v. Avon Park, 311 U.S. 138, 61 S.Ct. 157, 85 L.Ed. 91 (1940); SEC v. U. S. Realty Co., 310 U.S. 434, 60 S.Ct. 1044, 84 L.Ed. 1293 (1940); Young v. Higbee Co., 325 U.S. 204, 65 S.Ct. 594, 89 L.Ed. 890 (1945). . American Ins. Co. v. Avon Park, 311 U.S. 138, 61 S.Ct. 157, 85 L.Ed. 91 (1940). . Tinkoff, 85 F.2d 305 (7th Cir. 1936). . Brown, 21 F.Supp. 935 (Iowa 1938). . Gonzalez Hernandez Borgos," }, { "docid": "3898360", "title": "", "text": "Before counsel the court expressed the likelihood of better results under Chapter X as contrasted with results obtainable in other forums. We fail to appreciate the strength of this expression in face of the scarcity of facts. Nowhere in the record before this court is there the story of the debtor’s financial condition, its need for reorganization, and the possibility of effecting the sanie. In this regard the petition is lacking completely. It is elementary that the petition must set forth the essential facts. Manati Sugar Co. v. Mock, 2 Cir., 75 F.2d 284. Especially is the court interested in the financial history and structure of the corporate debtor. Hickey v. Ritz-Carlton Restaurant & Hotel Co., 3 Cir., 96 F.2d 748, 751; In re 1688 Milwaukee Corporation, 7 Cir., 99 F.2d 686. Yet, what little we know about the debtor’s affairs is obtained largely through the answer of the contesting creditor, which was condemned by counsel for petitioning creditors as “unnecessarily long.” We think that the petition in the instant case is insufficient to comply with the requirements of Chapter X. In so thinking we are not unmindful of the weight which we attach to the decisions of the lower court in matters of this kind. Nor have we overlooked the fact that the contesting creditor is owner of bonds in a comparatively small amount. Our conviction is based on the story as revealed by the record on appeal, as well as on the story not disclosed sufficiently therein. On the other hand, we have not adhered unduly to any particular fact, e. g., the recent date of incorporation, or the fact that at the time of filing this creditors’ petition counsel was not in reality authorized by the creditors. See In re North Kenmore Bldg., 7 Cir., 81 F.2d 656; In re Knickerbocker Hotel, 7 Cir., 81 F.2d 981; In re Loeb Apartments, 7 Cir., 89 F.2d 461; Shapiro v. Wilgus, 287 U.S. 348, 53 S.Ct. 142, 77 L.Ed. 355, 85 A.L.R. 128. Yet these are some of the circumstances and there are others, as the statement of facts" }, { "docid": "5894368", "title": "", "text": "was noted that was as essential to the maintenance of the original as of the amended petition. The debtor was not denied an opportunity for a fair hearing. We are also of-the opinion that the action of the District Judge in dismissing both petitions was in harmony with the decision of the Supreme Court in Wright v. Vinton Branch Bank, 300 U.S. 440, 462, 57 S.Ct. 556, 561, 81 L.Ed. 736. It was there said that the benefits of sectio.n 75 (s) may be obtained only by one who has made a bona fide attempt, and has failed, to effect a composition under section 75 (a) to (r), 11 U.S.C.Á. § 203 (a-r) ; and that the offer of composition must be in good faith, and if the debtor is beyond all reasonable hope of financial rehabilitation and the proceedings under section 75 can have no effect beyond postponing inevitable liquidation, the proceedings will be halted at the outset. See, also, Steverson v. Clark, 4 Cir., 86 F.2d 330. On this phase of the case the District Judge said: “The term ‘good faith’ is here used as it has been used and applied in various cases arising under this statute, Wright v. Vinton Branch Bank, 300 U.S. 440, 57 S.Ct. 556, 81 L.Ed. 736; In re Borgelt, D.C., 10 F.Supp. 113; Id., 7 Cir., 79 F.2d 929; In re Schaeffer, D.C., 14 F.Supp. 807; Knotts v. South Carolina, etc., Bank, 4 Cir., 86 F.2d 551; In re Reichert, D.C., 13 F.Supp. 1; In re Price, D.C., 16 F.Supp. 836. Debtors who invoke the provisions of section 75 for an opportunity to effect a composition or extension with their creditors must approach them in a sincere and honest effort to submit a proposal which offers a definite and reasonable method of liquidating the indebtedness and which can be expected to receive the consideration of reasonable men. Debtors who purport to offer terms of composition or extension merely as a preliminary step to taking later refuge under subsection (s) are not acting in good faith. The mere gesture of making some sort" }, { "docid": "23543096", "title": "", "text": "§ 1129 can constitute “cause” within the framework of § 1112(b)). Feasibility contemplates the probability of actual performance of plan provisions or whether the things to be done under a plan of reorganization can be done as a practical matter under the facts. Clarkson v. Cooke Sales & Serv. Co. (In re Clarkson), 767 F.2d 417, 420 (8th Cir.1985). Although the success of a plan need not be guaranteed, the court must be satisfied that it is probable that a plan is workable and will cash flow. In re M & S Assocs., Ltd., 138 B.R. 845, 849 (Bankr.W.D.Tex.1992). “Sincerity, honesty and willingness are not sufficient to make the plan feasible and neither are visionary promises.” In re Clarkson, 767 F.2d at 420. See Tennessee Publishing Co. v. American Nat’l Bank, 299 U.S. 18, 22, 57 S.Ct. 85, 87, 81 L.Ed. 13 (1936) (“However honest in its efforts the debtor may be, and however sincere its motives, the ... Court is not bound to clog its docket with visionary or impracticable schemes for resuscitation.”). When construing feasibility requirements, this court gives Chapter 11 debtors the benefit of the doubt and will reasonably resolve conflicts in the evidence in favor of the debtor when the debtor’s projections, using reasonable inputs in light of the current economic climate, indicate that the causes of the debtor’s continuing losses can be corrected and that it is reasonably probable that the debtor will be able to make the plan payments. See Prudential Ins. Co. v. Monnier (In re Monnier), 755 F.2d 1336, 1341 (8th Cir.1985). A plan for rehabilitation under Chapter 11 must be based on more than speculative data. Although projections are just that and there will always be a degree of uncertainty as to what actual results will be, feasibility must be predicated upon objective facts using known operational inputs and expenditures. “When visionary schemes for reorganization entail significant risk to creditors without any reasonable probability that the debtor can successfully rehabilitate, liquidation is generally-in order.” 5 Collier on Bankruptcy ¶ 1112.03[i], at 1112-19 (15th ed. 1994). Although the debtor in the instant" }, { "docid": "22400265", "title": "", "text": "Cal. Nat’l. Bank, 93 F.2d 709 (9th Cir. 1937). j. No legitimate purpose of the Act will be served: Henderson, 100 F.2d 820 (5th Cir. 1938). k. Secret advantages to favored creditors or other improper or fraudulent purpose: John Hancock Life Ins. Co. v. Bartels, 308 U.S. 180, 60 S.Ct. 221, 84 L.Ed. 176 (1939). l. No reasonable hope of rehabilitation— pre-Bartels Wright v. Vinton Branch, 300 U.S. 440, 57 S.Ct. 556, 81 L.Ed. 736 (1937). m. No reasonable hope of rehabilitation — post-Bartels: Mahaffey, 34 F.Supp. 760 (W.D.N.Y.1940); Zumkehr, 108 F.2d 448 (7th Cir. 1939). n. Purchase of naked title on eve of foreclosure: Ripley, 40 F.Supp. 850 (W.D.Mo.1941). o. Intent to protect violation of State land law: Kuye Takano, 71 F.Supp. 79 (D.C.Cal.1947). Cases dealing with “good faith” in the context of Chapter IX: a. Fair bargain openly arrived at and devoid of overreaching: Town of Bell Eair, 132 F.2d 542 (5th Cir. 1942). b. Lack of full and complete disclosure: American Ins. Co. v. Avon Park, 311 U.S. 138, 61 S.Ct. 157, 85 L.Ed. 91 (1940). Cases dealing with “good faith” in the context of Section 77B: a. Actual intent and purpose to effect a reorganization: In re Southcoast Co., 8 F.Supp. 43 (Del.1934). b. Not truly a creditor’s petition: Philadelphia Rapid Transit Co., 8 F.Supp. 51 (E.D.Pa.1934). c. Futile! No reorganization plan possible: New York Title & Mortgage Co., 9 F.Supp. 319 (N.D.N.Y.1934). d. Plan can be formulated later: In re Kelly Springfield Tire Co., 10 F.Supp. 414 (1935 Md.). e. To save sinking debtor from drowning: In re Kelly Springfield Tire Co., 10 F.Supp. 414 (1935 Md.). f. No precise definition — look to court’s discretion: Prairie Ave. Bldg. Corp., 11 F.Supp. 125 (Ill.1935). g. Some possibility of a successful reorganization: 2747 Milwaukee Ave. Bldg. Corp., 12 F.Supp. 557 (1935 N.D.Ill.). Grigsby-Grunow, 77 F.2d 200 (7th Cir. 1935); Provident Mutual Life Ins. Co. v. University Ev. L. Church, 90 F.2d 992 (9th Cir. 1937); Detroit Trust Co. v. Campbell River Timber Co., 98 F.2d 389 (9th Cir. 1938); Snyder v. Fenner, 101 F.2d 736 (3d" }, { "docid": "6395920", "title": "", "text": "Supreme Court in Anderson v. Mt. Clemens Pottery Co. 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515, following Tennessee Coal Iron & R. Co. et al. v. Muscoda Local No. 123, et al. 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949, 152 A.L.R. 1014; Jewell Ridge Coal Corporation v. Local No. 6167 United Mine Workers, 325 U.S. 161, 172, 65 S.Ct. 1063, 89 L.Ed. 1534. Retrospective legislation is generally not favored by the courts and where there is an open question of construction of a statute with respect to whether it should be applied retrospectively it will only be so applied where it clearly does not impinge upon constitutional protection. Duke Power Co. v. South Carolina Tax. Comm., 4 Cir., 81 F.2d 513, 516. And it is a sound principle of constitutional law that retroactive legislation in general will not be allowed to impair rights which can truly be said to be vested rights of a nature constituting property rights. Lynch v. United States, 292 U.S. 571, 54 S.Ct 641, 78 L.Ed. 1434; Ettor v. City of Tacoma, 228 U.S. 148, 156, 33 S.Ct. 428, 57 L.Ed. 773; Hathorn v. Calef, 2 Wall. 10, 17 L.Ed. 776; Steamship Co. v. Joliffe, 2 Wall. 450, 17 L.Ed. 805; Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866; Duke Power Co. v. South Carolina Tax Comm., 4 Cir., 81 F.2d 513; Knickerbocker Trust Co. v. Myers, C.C., 133 F. 764, 767; Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, 97 A.L.R. 1106. Cf. Wright v. Vinton Branch, 300 U.S. 440, 57 S.Ct. 556, 81 L.Ed. 736, 112 A.L.R. 1455; Wright v. Union Central Life Ins. Co. 311 U.S. 273, 61 S.Ct. 196, 85 L.Ed. 184. Counsel for the plaintiffs have taken pains to analyze and classify cases in which retrospective statutes have been upheld as constitutional, and submit the following classification as exhaustive: (1) statutes affecting merely the nature of the legal remedy and leaving'the substantive rights untouched; (2) statutes abolishing the right to enforce a mere penalty or" }, { "docid": "22045935", "title": "", "text": "95th Cong., 1st Sess. 406 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6362. The Supreme Court has said that “[h]ow-ever honest in its efforts the debtor may be, and however sincere its motives, the District Court is not bound to clog its docket with visionary or impracticable schemes for resuscitation.” Tennessee Publishing Co. v. American Nat’l Bank, 299 U.S. 18, 22, 57 S.Ct. 85, 87, 81 L.Ed. 13 (1936). “[T]here must be ‘a reasonable possibility of a successful reorganization within a reasonable time.’ ” United Sav. Ass’n v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 376, 108 S.Ct. 626, 632, 98 L.Ed.2d 740 (1988). “Courts usually require the debtor do more than manifest unsubstantiated hopes for a successful reorganization.” In re Canal Place Ltd. Partnership, 921 F.2d 569, 577 (5th Cir.1991). The district court cited the factors that establish the unlikelihood of Rosemary Brown’s rehabilitation. In oral argument before this Court, her counsel further conceded that Gary's income was the “sole means of funding a reorganization plan.” We have substantial doubts that the debtor could have been rehabilitated and reorganized at the time the bankruptcy judge denied the motion to dismiss, but the record lacks the certainty needed for entry of judgment on appeal. Section 1112(b)(1) requires the moving party to prove continuing loss or diminution of the estate. See 5 Collier on Bankruptcy ¶ 1112.03[d][i] (L.King ed., 15th ed. 1991). The record does not have evidence on this point. Section 1112(b)(2) requires the moving party to prove that it is unreasonable to expect that a plan can be approved. Id. ÍÍ 1112.03[d][ii]. Although Rosemary would have faced difficulty, nothing in the record in the brief two months before denial of dismissal establishes that the bank would reject all possible plans. Similarly, we think that the evidence, then existing, of bad faith was not strong enough to enable us to say that it was established as a matter of law. It is significant that the motion to dismiss was presented just a few weeks after the petition was filed and before the posture of the case was clear. Moreover, because" }, { "docid": "21538833", "title": "", "text": "207 (c-f), has been reached, inquire into the situation of the debtor, and as to the feasibility of a reorganization under the act. It should not, however, before the stage of plan submitting has arrived, examine into the feasibility of reorganization with the searching intensity required, when a plan or plans having been submitted by the petitioner, the good faith, and feasibility of plans for reorganization come directly up. A recognition of. this difference in emphasis upon the question of plan and of reorganization feasibility, when, by an attack upon the good faith of a proposed submitted plan these matters are directly up, and when, by an attack upon the petition, as not filed in good faith they are only incidentally or collaterally up, is sufficiently, we think, if not always clearly, manifested in the cases. O’Connor v. Mills, 8 Cir., 90 F.2d 665; Manati Sugar Co. v. Mock, 2 Cir., 75 F.2d 284; In re Augustyn, 7 Cir., 87 F.2d 577; Tennessee Pub. Co. v. American Nat. Bank, 299 U.S. 18, 57 S.Ct. 85, 81 L.Ed. 13; c/f Knickerbocker Hotel Co., 7 Cir., 81 F.2d 981; In re South Coast Co., D.C., 8 F.Supp. 43; In re Loeb Apartments, Inc., 7 Cir., 89 F.2d 461; In re Kelly-Springfield Tire Co., D.C., 10 F.Supp. 414; In re Geiser Mfg. Co., D.C., 18 F.Supp. 506. Under the rule they establish, if it is clear that under no reasonable possibility can the debtor conform to' and obtain the benefits of the statute, and that therefore the petition was manifestly filed, if by the debtor, for delay, or if by petitioning creditors, for harassment, the petition may be dismissed before the plan stage is reached, as wanting in the good faith the statute requires. Under that rule, where the good faith of the filing is attacked, before the plan stage has been reached, unless the impossibility of conforming to and obtaining the benefits of the statute clearly appears, the petition should not be dismissed as not filed in good faith. It should be retained, and questions of plan and reorganization worked out, in" }, { "docid": "2945628", "title": "", "text": "Court said: “In a reorganization proceeding under section 77B [11 U.S.C.A. § 207] good faith means more than honesty of purpose. It also requires that there be a reasonable possibility of successful reorganization. Wright v. Vinton Branch Bank, 300 U.S. 440, 463, 57 S.Ct. 556, 562, 81 L.Ed. 736 [112 A.L.R. 1455]; Tennessee Publishing Co. v. American Bank, supra [299 U.S. 18, 57 S.Ct. 85, 81 L.Ed. 13]; In re Tennessee Publishing Co., 6 Cir., 81 F.2d 463; In re Loeb Apartments, 7 Cir., 89 F.2d 461; Manati Sugar Co. v. Mock, 2 Cir., 75 F.2d 284; O’Connor v. Mills, 8 Cir., 90 F.2d 665; Provident Ins. Co. v. University Church, 9 Cir., 90 F.2d 992. “Whenever want of good faith appears the debtor’s petition should be dismissed even though a plan of reorganization has not been submitted. The District Court was reversed for failure to dismiss in such a case in Provident Ins. Co. v. University Church, supra, in Re Wisun & Golub, 2 Cir., 84 F.2d 1, and in Re North Kenmore Corporation, 7 Cir., 81 F.2d 656. The-judgment of the District Court dismissing the petition for want of good faith was affirmed in O’Connor v. Mills, supra; in Manati Sugar Co. v. Mock, supra; and in Re Grigsby-Grunow Co., 7 Cir., 77 F.2d 200. “In Brockett v. Winkle Terra Cotta Co., 8 Cir., 81 F.2d 949, 953, Judge Van Vallcenburgh, speaking for this court, said in-reference to section 77B: ‘ “The outstanding purpose of the Amended Act, upon which this case rests, was to afford aid in the effort to rehabilitate corporations solvent in fact but unable to meet maturing obligations.” It was not the purpose to lend its aid generally and without discrimination to corporations hopelessly insolvent, and without legal resources to prosecute their business with reasonable prospect of success.’ “Considering the act itself and all these decisions .it is apparent that it is the duty of the District Court to bear in mind the purpose and function of 77B at every step-of the proceedings; and whenever it appears that rehabilitation of the debtor is-impracticable or" }, { "docid": "2945629", "title": "", "text": "7 Cir., 81 F.2d 656. The-judgment of the District Court dismissing the petition for want of good faith was affirmed in O’Connor v. Mills, supra; in Manati Sugar Co. v. Mock, supra; and in Re Grigsby-Grunow Co., 7 Cir., 77 F.2d 200. “In Brockett v. Winkle Terra Cotta Co., 8 Cir., 81 F.2d 949, 953, Judge Van Vallcenburgh, speaking for this court, said in-reference to section 77B: ‘ “The outstanding purpose of the Amended Act, upon which this case rests, was to afford aid in the effort to rehabilitate corporations solvent in fact but unable to meet maturing obligations.” It was not the purpose to lend its aid generally and without discrimination to corporations hopelessly insolvent, and without legal resources to prosecute their business with reasonable prospect of success.’ “Considering the act itself and all these decisions .it is apparent that it is the duty of the District Court to bear in mind the purpose and function of 77B at every step-of the proceedings; and whenever it appears that rehabilitation of the debtor is-impracticable or that ,injunctive relief is-not sought in good faith the court in the exercise of a sound discretion should refuse the debtor further aid in harassing lienholders.” In Tennessee Publishing Co. v. American National Bank, 299 U.S. 18, 22, 57 S.Ct. 85, 87, 81 L.Ed. 13, the Supreme Court said: “Nor do we need to inquire as to the precise limits of the concept of ‘good faith’ as required by section 77B. Whatever these limits may be, the statute clearly contemplates the submission of a plan of reorganization which admits of being confirmed as ‘fair and equitable’ and as ‘feasible.’ However honest in its efforts the debtor may be, and however sincere its motives, the District Court is hot bound to clog its docket with visionary, or impracticable schemes for resuscitation. Subsection (f) of § 77B (11 U.S.C.A. § 207 (f) provides for the confirmation of a plan only if the District Judge is satisfied ‘that (1) it is fair and equitable and does not' discriminate unfairly in favor of any class of creditors or stockholders," }, { "docid": "2945627", "title": "", "text": "past, present and probable prospective earnings and expenses, and of whether a plan proposed offers a reasonable prospect of success and is workable, there must be competent, definite, concrete, and reliable evidence from which such facts may be ascertained by the court. From the evidence in the record before us, it is impossible to gather any knowledge of the business history of the debtor, or of its past, present and probable prospective earnings and expenses. About all that the record shows-is that from some time in 1933 the debtor has been in the hands of the courts. There is no evidence to show that if it is reorganized it can be operated profitably or that it has at any time been operated profitably. There is no evidence to justify a conclusion that it can obtain the necessary funds without which, concededly, no further development or operation of the mines can take place. In First Nat. Bank v. Conway Road Estates Co., 8 Cir., 94 F.2d 736, 739, Judge Thomas, in delivering the opinion of this Court said: “In a reorganization proceeding under section 77B [11 U.S.C.A. § 207] good faith means more than honesty of purpose. It also requires that there be a reasonable possibility of successful reorganization. Wright v. Vinton Branch Bank, 300 U.S. 440, 463, 57 S.Ct. 556, 562, 81 L.Ed. 736 [112 A.L.R. 1455]; Tennessee Publishing Co. v. American Bank, supra [299 U.S. 18, 57 S.Ct. 85, 81 L.Ed. 13]; In re Tennessee Publishing Co., 6 Cir., 81 F.2d 463; In re Loeb Apartments, 7 Cir., 89 F.2d 461; Manati Sugar Co. v. Mock, 2 Cir., 75 F.2d 284; O’Connor v. Mills, 8 Cir., 90 F.2d 665; Provident Ins. Co. v. University Church, 9 Cir., 90 F.2d 992. “Whenever want of good faith appears the debtor’s petition should be dismissed even though a plan of reorganization has not been submitted. The District Court was reversed for failure to dismiss in such a case in Provident Ins. Co. v. University Church, supra, in Re Wisun & Golub, 2 Cir., 84 F.2d 1, and in Re North Kenmore Corporation," }, { "docid": "8377782", "title": "", "text": "is justified to deny a farmer the right to go through bankruptcy under the provisions of Subsection (s) of Section 75.” We shall concede, without deciding, that the language of Section 75 (s) is capable of the interpretation which the appellánt contends for; but that interpretation is • contrary to the construction which the Supreme Court has placed upon Section 75 (s) in the opinion delivered by Mr. Justice Brandeis in the case of Wright v. Vinton Branch, 300 U.S. 440, page 462, 57 S.Ct. 556, 561, 81 L.Ed. 736, 112 A.L.R. 1455, as we read that 'opinion. The Supreme Court said (page 462 of 300 U.S., 57 S.Ct. page 561): “Paragraph 3 authorizes the court to have the property sold if ‘at any time’ the debtor should fail to comply with orders of the court issued under its power to require interim payments on principal, or otherwise in the course of its ‘supervision and control’ of his possession. Paragraph 3 also provides that ‘if * * * the debtor at any time * * * is unable to refinance himself within three years,’ the court may close the proceedings by selling the property. This clause must be interpreted as meaning that the court may terminate the stay if after a reasonable time it becomes ’evident that there is no reasonable hope that the debtor can rehabilitate himself within the three-year period.6 ” Then follows this footnote (pages 462, 463 of 300 U.S., 57 S.Ct.. page 562): “6 This construction is in harmony with the requirement of good faith in.the initiation of proceedings under section 75. Rer lief under section 75 (s) may be obtained only by one who has made a bona fide attempt, and has failed, to effect a composition under section 75, (a) to (r), 11 U, S.C.A. § 203(a-r). The offer of composition must be in' good faith [section 75,' (c), (i), 47 Stat. 1471, 1472], and i-f the debtor is beyond all reasonable hope of financial rehabilitation, and the proceedings under section 75 cannot be expected to have any effect beyond postponing inevitable liquidation, the" } ]

[ { "docid": "1120488", "title": "", "text": "DECISION ON SUMMARY JUDGMENT MOTIONS FOR DENIAL OF DISCHARGE BURTON R. LIFLAND, Chief Judge. I. Dispute Summary The plaintiffs, Judith Ripps (“Ripps”) and Bankruptcy Trustee Alan Nisselson (the “Trustee”) (together, the “Movants”), have brought a joint motion for summary judgment to deny the discharge of Stanley Wolfson (the “Debtor”) pursuant to 11 U.S.C. § 727(a)(3), (4), (5), and (6) and Bankruptcy Rules 4004 and 7001. The Debtor cross-moved for an order pursuant to Bankruptcy Rule 7037 and Federal Rule of Civil Procedure 37 to direct each of the plaintiffs to produce documents and for the Court to deny the plaintiffs’ summary judgment motion. This Court has jurisdiction over the proceeding pursuant to 28 U.S.C. §§ 157 and 1334 and the “Standing Order of Referral of Cases to Bankruptcy Judges” by the District Court dated July 10, 1984. This is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2)(J). On January 3, 1990, the Debtor filed a voluntary Petition for Relief under Chapter 7 of the Bankruptcy Code. Alan Nisselson was subsequently appointed Chapter 7 Trustee of the Debtor’s estate. The other plaintiff, Judith Ripps (formerly known as Judith Ripps Wolfson), is involved in divorce proceedings with the Debtor. A § 341(a) meeting was initially scheduled for March 9,1990. The March 9 meeting was adjourned because the Debtor claimed his counsel could not be present. At the meeting rescheduled for April 23, 1990, the Debtor claimed to be ill and refused to answer the Trustee’s questions. No counsel appeared on the Debtor’s behalf. On numerous occasions the Debtor was requested to produce records for the April 23 meeting relating to his financial condition which the Trustee alleges are necessary to administer the case. At an adjourned § 341(a) meeting held on November 1, 1990, the Debtor finally agreed to supply the Trustee with certain records. The Trustee alleges that the Debtor has failed to produce several of these records and has made inconsistent statements as to the existence of many of them. The Mov-ants therefore state that the Debtor should be denied a discharge under §§ 727(a)(3), (4) and" } ]

[ { "docid": "23673426", "title": "", "text": "ORDER REGARDING MOTION TO REOPEN CHAPTER 7 BANKRUPTCY MARGARET A. MAHONEY, Bankruptcy Judge. This matter comes before me upon the Motion of Marilyn Karamitsos to reopen her Chapter 7 bankruptcy case. The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157 and the Order of Reference of the District Court. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A). Debtor has moved under 11 U.S.C. § 350(b) and Bankruptcy Rule 5010 for reopening of this discharged no asset Chapter 7 case for the sole purpose of adding a creditor to avoid the possibility of future litigation. Debtor is in effect requesting to discharge a potential creditor. Motions to reopen Chapter 7 cases to amend schedules to include omitted creditors are filed with some frequency. I am writing this opinion to dispel the mistaken notion debtors and creditors and their counsel have about the effect of such a motion. The filing of an amended creditor schedule after discharge has been granted in a no asset Chapter 7 case has absolutely no effect on the dischargeability of debt. In re Anderson, 72 B.R. 495 (Bankr.D.Minn.1987). Determination regarding such a discharge is properly brought in bankruptcy court through an adversary proceeding commenced by the filing of a complaint. A discharge under 11 U.S.C. § 727 acts as a complete discharge of all debts. Sec tion 523(a) delineates debts that are excepted from discharge. The scope of the discharge is final when entered. Therefore, a judicial determination of which debts, if any, are to be excepted from discharge is required. Reopening a case to allow amendment of schedules is futile. The debt in question is either discharged or excepted from discharge based on a judicial analysis of 11 U.S.C. § 523 (a)(3). Reopening a case to list a creditor after discharge does not give a creditor an extension of time in which to file a claim. In fact, in a no asset Chapter 7 case, there is never a claim filing period. Reopening a case to list a creditor does not extend the" }, { "docid": "14573144", "title": "", "text": "ascertained. Accordingly, pursuant to § 727(a)(3) of the Bankruptcy Code, the Debtor’s discharge is denied. Section 727(a)(4)(A) excepts from discharge any debtor who “knowingly and fraudulently, in or in connection with the case ... made a false oath or account.” 11 U.S.C. § 727(a)(4)(A). In order to deny a debtor its discharge pursuant to this section, the objecting creditor must establish the following elements: (1) the debtor made a statement under oath; (2) such statement was false; (3) the debtor knew the statement was false; (4) the debtor made the statement with fraudulent intent; and (5) the statement related materially to the bankruptcy case. In re Beaubouef, 966 F.2d 174, 178 (5th Cir.1992) (citing Sapru, 127 B.R. at 314); In re Brooks, 58 B.R. 462, 465 (Bankr.W.D.Pa.1986); In re Shebel, 54 B.R. 199, 202 (Bankr.D.Vt.1985). A false oath sufficient to justify the denial of a discharge pursuant to § 727(a)(4)(A) includes “(1) a false statement or omission in the debtor’s schedules or (2) a false statement by the debtor at an examination during the course of the proceedings.” Beaubouef 966 F.2d at 178; In re Colburn, 145 B.R. 851, 857 (Bankr.E.D.Va.1992); Sapru, 127 B.R. at 314; In re Bailey, 53 B.R. 732, 735 (Bankr.W.D.Ky.1985). However, in the present case, while the Trustee has demonstrated that the Debtor fraudulently filed false income tax returns with the Internal Revenue Service, the complaint fails to show that the income tax returns constitute a false statement made under oath during the course of bankruptcy proceedings. In fact, any falsity on the Debtor’s income tax returns which was admitted by the Debtor, herself, during the course of the Section 341 meetings is a matter which may be of concern to the Internal Revenue Service. Therefore, the denial of the Debtor’s discharge pursuant § 727(a)(4)(A) is not justified. CONCLUSIONS 1. This Court has jurisdiction over this matter pursuant 28 U.S.C. §§ 1334 and 157(b)(2)(J) as it is a core proceeding concerning an objection to the discharge of the Debtor. 2. The discharge of the Debtor is denied pursuant to § 727(a)(3). SUBMIT AN ORDER CONSISTENT WITH" }, { "docid": "12999743", "title": "", "text": "2001). Several badges of fraud are present in this case, leading the Court to conclude that Cutler had the requisite intent to hinder, delay or defraud his creditors. First, both transfers were gratuitous. Cutler admitted that he had no obligation to either Hicks Construction Co. or Professional Designers & Developers. Moreover, he received no benefit from the transfers. Second, Professional Designers & Developers is solely owned by Cutler’s son. Third, the transfers left Cutler with no equity in his home and virtually no other assets. Fourth, the transfer occurred just six months prior to the debtor’s bankruptcy. Finally, Cutler did not disclose the transfers in his petition or schedules. The transfers were discovered by the trustee and addressed during a 2004 examination of the debtor. The debtor did not amend his petition and schedules until 7 months later. The Court concludes that the elements of § 727(a)(2)(a) are met with regard to the transfers to Hicks Construction Co. and Professional Designers & Developers. Accordingly, the debtor’s discharge is denied on those grounds. III. The trustee asserts that the debtor’s discharge should also be denied pursuant to § 727(a)(3) which provides: (a) The court shall grant the debtor a discharge, unless- (3) the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case[.] 11 U.S.C. § 727(a)(3). A debtor may be denied a discharge for failure to keep adequate financial records, regardless of a lack of intent to conceal financial information from creditors. American Motors Leasing Corp. v. Morando (In re Morando), 116 B.R. 14 (Bankr.D.Mass.1990); Reynolds v. Miller (In re Miller), 97 B.R. 760, 763 (Bankr.W.D.N.Y.1989). “The party seeking denial of a discharge has the burden of proving the inadequacy of the debtor’s records.” Turoczy Bonding Co. v. Strbac (In re Strbac), 235 B.R. 880, 882 (6th Cir. BAP1999) (citation omitted). In order to prevail on a section 727(a)(3) action," }, { "docid": "12564218", "title": "", "text": "PER CURIAM: Debtor Gilbert G. Beezley appeals the decision of the Ninth Circuit BAP, affirming the bankruptcy court’s denial of his motion to reopen his bankruptcy case under 11 U.S.C. § 350(b). We have jurisdiction pursuant to 28 U.S.C. § 158(d), and we affirm. Beezley argues that the bankruptcy court abused its discretion by failing to grant his motion to reopen his case. See In re Herzig, 96 B.R. 264, 266 (9th Cir. BAP 1989) (bankruptcy court’s refusal to reopen a closed case under 11 U.S.C. § 350(b) reviewed for an abuse of discretion). We disagree. Based on the assumption that amendment was necessary to discharge the debt, Beezley sought to add an omitted debt to his schedules. Beezley’s, however, was a no asset, no bar date Chapter 7 case. After such a case has been closed, dischargeability is unaffected by scheduling; amendment of Beezley’s schedules would thus have been a pointless exercise. See American Standard Ins. Co. v. Bakehorn, 147 B.R. 480, 483 (N.D.Ind.1992); In re Stecklow, 144 B.R. 314, 317 (Bankr.D.Md.1992); In re Tucker, 143 B.R. 330, 334 (Bankr.W.D.N.Y.1992); In re Peacock, 139 B.R. 421, 422 (Bankr.E.D.Mich.1992); In re Thibodeau, 136 B.R. 7, 10 (Bankr.D.Mass.1992); In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990); In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989). If the omitted debt is of a type covered by 11 U.S.C. § 523(a)(3)(A), it has already been discharged pursuant to 11 U.S.C. § 727. If the debt is of a type covered by 11 U.S.C. § 523(a)(3)(B), it has not been discharged, and is non-dischargeable. In sum, reopening here in order to grant Beezley’s request would not have “accord[ed] relief to” Beez-ley; thus, there was no abuse of discretion. AFFIRMED. . We express no opinion as to whether the omitted debt was or was not discharged. O’SCANNLAIN, Circuit Judge, concurring: The simple question with which we are presented — whether the bankruptcy court abused its discretion by denying the debtor’s motion to reopen — requires, in my view, more than a simple answer. I write separately to address certain matters that the per curiam opinion does" }, { "docid": "18797339", "title": "", "text": "ORDER GRANTING MOTION FOR AUTHORITY TO COMPROMISE R. GUY COLE, Jr., Bankruptcy Judge. This matter is before the Court upon the Motion for Authority to Compromise filed by Daniel F. Carmack, the trustee in this Chapter 7 case (“Trustee”) and the Objection to Motion to Compromise by Trustee filed by the debtors, Kenneth J. Carson and Jane I. Carson (“Debtor” or “Carson”). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this District. This is a core proceeding which the Court may hear and determine. 28 U.S.C. § 157(b)(2)(A). The following constitute findings of fact and conclusions of law pursuant to Bankruptcy Rule (“B.R.”) 7052. I.FINDINGS OF FACT 1. The Debtors filed a petition under Chapter 7 of the Bankruptcy Code on January 9, 1984. Carson received a discharge from the Court pursuant to 11 U.S.C. § 727 on May 23, 1984. 2. At the time Carson filed his Chapter 7 petition, he was a party to a civil action in the United States District Court for the Southern District of Ohio, Eastern Division (Case No. C-2-83-933). In this civil action, which remains pending, Carson seeks recovery against his former employer, AT & T Technologies, Inc., (“AT & T”), and various employees of AT & T. Carson’s cause of action is predicated upon alleged employment discrimination and retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e, et seq.) (“Employment Discrimination Action”). 3. Prior to filing his Chapter 7 petition, Carson had retained Walter G. Brooks to represent him in prosecuting the Employment Discrimination Action. However, the Trustee sought and obtained authority to employ Andrew J. Ruzicho (“Ruzicho”) to litigate the Employment Discrimination Action on a post-petition basis. Ruzicho and his associate, Louis A. Jacobs (“Jacobs”) have continued the prosecution of the Employment Discrimination Action since the date of their employment (June 21,1984) as Special Counsel to the Trustee (“Special Counsel”). 4. Special Counsel, as a result of extensive negotiations with AT & T, has negotiated a proposed settlement of" }, { "docid": "6610628", "title": "", "text": "filed, she delivered the information for the schedules to her attorney by facsimile transmission. King attended the section 34Í meeting, the continued meeting, and, later, when she acquired separate counsel, filed some amended schedules. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a), 1334. Moreover, this Court concludes that this is a “core proceeding” within the meaning of 28 U.S.C. § 157(b)(1) as exemplified by 28 U.S.C. § 157(b)(2)(J). The Statute The discharge in bankruptcy is the foremost remedy to effectuate the “fresh start” which is the goal of bankruptcy relief. Ray v. Graham (In re Graham), 111 B.R. 801, 805 (Bankr.E.D.Ark.1990). Consequently, the Code provisions in any objection to discharge must be strictly construed. Panuska v. Johnson (In re Johnson), 80 B.R. 953 (Bankr.D.Minn.1987), aff'd, 101 B.R. 997 (D.Minn.1988), remanded for further proceedings, 880 F.2d 78 (8th Cir.1989). The burden is upon the objecting party to prove all elements of the statute setting forth grounds for denying discharge. Graham, 111 B.R. at 805. Section 727(a), provides as follows: The court shall grant the debtor a discharge, unless, (2)the debtor, with the intent to hinder, delay, or defraud a creditor or an officer of the estate charged -with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of petition; or (B) property of the estate, after the date of the filing of the petition; (3) the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case; (4) the debtor knowingly and fraudulently, in or in connection with the case— (A) made a false oath or account; * * * (5) the debtor has failed to explain satisfactorily, before determination of denial of discharge under this paragraph, any" }, { "docid": "13244730", "title": "", "text": "Chapter 7 DECISION CARLA E. CRAIG, Chief United States Bankruptcy Judge This matter comes before the court on the motion of Jacob Agai, 291 Avenue P, LLC, and Summerfield Developers, Inc. (the “Plaintiffs”), seeking summary judgment pursuant to Federal Rule of Civil Procedure 56(a), made applicable here by Federal Rule of Bankruptcy Procedure 7056, against Stylianos Antoniou (the “Debtor”), seeking denial of discharge under 11 U.S.C. §§ 727(a)(2)(A), 727(a)(3), 727(a)(4)(A), and 727(a)(5). The uncontested facts show that the Debtor transferred and concealed property with intent to hinder, delay, or defraud creditors within one year of the filing by deliberately diverting his paychecks and other income to his wife’s bank account in order to prevent his creditors from garnishing these funds; that he concealed or failed to keep or preserve recorded information from which his financial condition might be ascertained; and that he knowingly and fraudulently made a false oath by failing to disclose the existence of the bank account containing his earnings, failing to disclose the transfers of these funds to his wife, and significantly misstating his income for 2010 and 2011 on his schedules and Statement of Financial Affairs filed in the case. Accordingly, for the reasons set forth below, Plaintiffs’ motion for summary judgment is granted. JURISDICTION This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b), and the Eastern District of New York standing order of reference dated August 28,1996. This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(J). This decision constitutes the Court’s findings of fact and conclusions of law to the extent required by Federal Rule of Bankruptcy Procedure 7052. BACKGROUND The facts set forth below are not in dispute, except as otherwise noted. The Debtor filed a voluntary petition under chapter 7 of the Bankruptcy Code on July 31, 2012 (the “Filing Date”). (Petition, 12-45622-CEC, ECF No. 1). On October 24, 2012, Plaintiffs filed an adversary proceeding objecting to the Debtor’s discharge pursuant to 11 U.S.C. § 727(c). (Compl., 12-01299-CEC, ECF No. 1.) On December 16, 2013, Plaintiffs filed a motion for summary judgment (the “Motion”). (Plaintiffs Mot. for" }, { "docid": "9340658", "title": "", "text": "of two non-existing corporations known as Christopher Ames Ltd. and Finast Products, Inc., which they used for personal purposes were concealed from the trustee. Significantly, the debtors directed the Chemical Bank, where these accounts were maintained, not to furnish the trustee in bankruptcy with any information as to these accounts. Bankruptcy Rule 1019(5) requires that a Chapter 11 debtor in possession, in a Chapter 11 case that has been converted to Chapter 7, must “forthwith ... turn over to the Chapter 7 trustee all records and property of the estate in the possession or control of the debtor in possession....” The debtors maintained the three checking accounts with Chemical Bank, namely Lawrence B. Greene, individually, Christopher Ames Ltd. and Finast Products, Inc. during their Chapter 11 case but failed to turn over to the trustee in bankruptcy any records as to these accounts and tried to prevent Chemical Bank from furnishing information as to these accounts to the trustee in bankruptcy. Not only have the debtors violated 11 U.S.C. § 727(a)(3) by not producing any books or records as to their financial condition, but they have also violated 11 U.S.C. § 727(a)(6) by refusing to obey the court order dated January 16, 1987, which directed them to turnover their financial records to the trustee. The debtors’ failure to turnover their financial records and their concealment of the three checking accounts justifies the denial of their discharges. In re Switzer, 55 B.R. 991 (Bankr.S.D.N.Y.1986). In view of the fact that the debtors are not entitled to receive a discharge pursuant to 11 U.S.C. § 727, there is no point in addressing plaintiff Baer’s additional charges as to the nondischargeability of his claim under 11 U.S.C. § 523. CONCLUSIONS OF LAW 1. This court has jurisdiction of the subject matter and the persons in this case in accordance with 28 U.S.C. § 1334 and 28 U.S.C. § 157(a). This is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2)(J). 2. The plaintiffs have sustained their burden of proof imposed by Bankruptcy Rule 4005 by clear and convincing evidence that the" }, { "docid": "432780", "title": "", "text": "DECISION CARLA E. CRAIG, Chief Judge. Before the court is the motion of Bill Stathakos (“Mr. Stathakos”), pursuant to Rules 4004(b) and 4007(c) of the Bankruptcy Rules seeking an extension of time to object to the debtor’s discharge and to the dischargeability of a debt pursuant to § 523 and § 727 (the “Extension Motion”). The Extension Motion is denied because Mr. Stathakos failed to diligently pursue discovery or to take any steps to seek the denial of the debtor’s discharge, or to seek a determination of nondischargeability with respect to his claim against the debt- or, prior to the deadline to object to discharge or dischargeability, and because no justification has been offered for this delay nor any reason why his objections to discharge and dischargeability could not have been asserted prior to the deadline provided by the Bankruptcy Rules. Jurisdiction This Court has jurisdiction over this core proceeding under 28 U.S.C. §§ 157(b)(2)(I), 157(b)(2)(J) and 1334(b), and the Eastern District of New York standing order of reference dated August 28, 1986. This decision constitutes the Court’s findings of fact and conclusions of law to the extent required by Bankruptcy Rule 7052. Facts The following facts are undisputed. On July 19, 2010, Leonid Chatkhan (the “Debtor”) filed a voluntary petition under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”). On October 20, 2010, upon the motion of the United States Trustee, this case was converted to a case under chapter 7. Robert L. Geltzer (the “Chapter 7 Trustee”) was appointed the chapter 7 trustee of the Debtor’s estate. The first meeting of creditors pursuant to § 341 was scheduled for November 10, 2010 (the “341 Meeting”). Pursuant to Bankruptcy Rules 4004(a) and 4007(c), January 9, 2011 was set as the date by which a complaint pursuant to § 727 objecting to the Debtor’s discharge, or a complaint pursuant to § 523 objecting to the dischargeability of a debt, must be filed. On December 31, 2010, Mr. Stathakos filed a proof of claim against the Debtor’s estate in the amount of $6,000,000.00, of which $1,300,000.00" }, { "docid": "10220596", "title": "", "text": "has not satisfactorily explained how, when or why these investments were lost. In order to satisfactorily explain the loss of assets, the Debtor need demonstrate good faith and integrity, as by cooperating with the Court and creditors. Such cooperation would have been manifest in the provision of documentation by the Debtor to substantiate the losses purportedly suffered on high risk investments. Despite repeated entreaties, however, the Debtor failed to provide even a modicum of documentary evidence. Instead, he testified resolutely that each and every of his investments went bust. Testimony so cursory is insufficient and unpersuasive. More is required. In re Yawnick, 19 B.R. 1, 3 (Bkrtcy.W.D.N.Y.1982). No more was offered. Accordingly, the Debtor failed to satisfactorily explain the loss of assets, and the Trustee’s request for relief pursuant to 11 U.S.C. § 727(a)(5) is granted. The Trustee next argues that discharge should be denied for the Debtor’s refusal to obey Orders of this Court. 11 U.S.C. § 727(a)(6). Under the subsection, “[a] debtor will be denied a discharge if he has refused in the case to obey any lawful order of the Court.” 4 Collier on Bankruptcy ¶ 727.09[2] (15th ed. 1986). To warrant denial, the objectant must show that there has been an instance of the wrongful conduct charged. The burden then shifts to the debtor to go forward with proofs refuting or justifying the objectionable act. Connelly v. Michael, 424 F.2d 387, 389 (5th Cir.1970). In deciding whether acts technically falling within the proscription of the statute should result in an Order of denial, bankruptcy courts of this Circuit have been instructed to “weigh the detriment to the proceedings and the dignity of the court -against the potential harm to the debtor if the discharge is denied.” In re Kokoszka, 479 F.2d 990, 997-98 (2nd Cir.1973). In this case, the Debtor was ordered on November 16, 1984, to relinquish possession and control of his property and business to the Trustee. The evidence indicates that he failed to do so, instead retaining control of assets whose existence he secreted for his own benefit, use and enjoyment. Other examples" }, { "docid": "4614251", "title": "", "text": "warranted denial of discharge). A creditor seeking to deny the debt- or’s discharge pursuant to Section 727(a)(3) need not demonstrate any intent on the part of the debtor to conceal his financial condition. In re Moreau, 161 B.R. 742 (Bankr.D.Conn.1993). In addition, courts have denied a discharge in bankruptcy for failing to produce documents which would distinguish personal expenses from corporate expenses. See In re Shapiro, 59 B.R. 844 (Bankr.E.D.N.Y.1986); Matter of Wilson, 33 B.R. 689 (Bankr.M.D.Ga.1983). In the instant case, the Debtor did not keep any records sufficient to even guess at his financial condition, let alone trace any assets or liabilities. When asked what happened to the proceeds of the sale of personal property subject to lien, the Debtor could not remember, let alone adequately explain. In this case, failure to keep any meaningful financial records or document important business transactions cannot be justified on the basis of inexperience or lack of education. The failure herein, if not outright intentional, rises to the level of reckless disregard to any creditor’s right to ascertain his financial affairs. When one engages in a business venture which results in a debtor and creditor rela tionship, society requires that a person act responsibly. Displaying a wanton disregard for a creditor’s property rights, and a failure to maintain any business or personal records from which his business affairs can be ascertained is not to be condoned or excused. Although the level of record keeping which is necessary to obtain a discharge depends on many factors and varies from case to case, a level at which the Debtor’s financial condition or business transactions cannot be ascertained, combined with the facts in the present case, justifies denial of the Debtor’s discharge of his debts. CONCLUSION 1. This Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1334(a). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(J). 2. Pursuant to 11 U.S.C. 727(a)(3), the Debtor has failed to keep or preserve any recorded information from which the Debt- or’s financial condition or business transactions may be ascertained without adequate excuse or justification." }, { "docid": "11849083", "title": "", "text": "Schedule I as “Russ.” [Trial Tr. at 32-33] As noted above, following remand, all trial exhibits were admitted and the parties waived further examination. Based upon review of the trial transcript, it is clear that Debtor is unsophisticated in financial or legal matters. As she candidly testified, her primary attention during her bankruptcy case focused on caring for her young teen-age daughter and moving forward with her protracted and expensive divorce proceeding. When she finally retained an experienced consumer bankruptcy attorney, she obtained the assistance necessary to cure the primary deficiencies in her Schedules and her SOFA, and she ultimately attended her Section 341 meeting of creditors. This Court may consider Debtor’s lack of business sophistication. In re DeRise, 2008 WL 850253, * 2; In re Smorto, No. 07-CV-2727 (JFB), 2008 WL 699502 * (E.D.N.Y. Mar.12, 2008). Analysis of Trustee’s Claims Section 727(a)(6): Refusal to Comply with a Lawful Order The plain language of Section 727(a)(6) provides that one ground for denying a debtor a discharge is if debtor “refuses to comply with a lawful order of the court.” “Although § 727(a)(6) provides that a bankruptcy court shall deny a discharge for failure to obey a lawful court order, case law has demonstrated that the denial is subject to the discretion of the court.” Weiss v. Winkler, No. 98-CV-5742, 2001 WL 423050, **10-11 (E.D.N.Y. Mar.30, 2001)(quoting, In re Beeber, 239 B.R. 13, 31 (Bankr.E.D.N.Y.1999)) (internal quotations omitted)(citing In re Kokoszka, 479 F.2d 990, 997 (2d Cir.1973), cert. granted sub nom., Kokoszka v. Belford, 414 U.S. 1091, 94 S.Ct. 721, 38 L.Ed.2d 548 (1973), aff'd, 417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974), reh’g. denied, 419 U.S. 886, 95 S.Ct. 160, 42 L.Ed.2d 131 (1974)). As explained by the Second Circuit in Kokoszka: (T)he referee must exercise his discretion whether or not to grant a discharge, even when an order has not been followed .... The denial of a discharge can work a serious deprivation upon a debt- or, and there are many circumstances where a bankrupt’s disobedience may have been inadvertent or otherwise excusable. Moreover the denial of" }, { "docid": "9884203", "title": "", "text": "MEMORANDUM OPINION STEPHEN C. ST. JOHN, Chief United States Bankruptcy Judge This matter' came on for hearing on December 11, 2015 (“Second Hearing”), on the Motion to Close Case Without Entry of Discharge. (“Motion”) filed by R. Clinton Stackhouse, • Jr., Chapter 13 Trustee (“Trustee”), on October 15,, 2015.- ECF No. 64. Counsel for the Debtor, Marlene Denise Evans (the “Debtor”), filed ,an answer to the Motion on November 2, 2015, in which she, denies , the case must, be closed -without a discharge and prays that the Court grant the Debtor her discharge. This matter was originally scheduled to be heard on November 6, 2015 (“Original Hearing”), but was continued to December 11, 2015, because the Debtor did hot appear at the Original Hearing. • This Court has jurisdiction over this proceeding pursuant to 28 U.S.C. §§ 157(b) and 1334(b). Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409(a). Upon consideration of the pleadings and following the conclusion of the presentation of arguments by counsel for the [parties, the Court took, the matter under ..advisement. The Court makes the following findings of fact and conclusions of law pursuant to .Federal Rule of Bankruptcy Procedure 7052. I.Factual Stipulation The Trustee and the Debtor entered into a factual stipulation concerning the Motion that provides as follows: ■ 1. On June 11, 2010, the Debtor sought bankruptcy protection under chapter 13 of title 11 of the United States Code (the “Bankruptcy Code”) and relief was ordered. 2. [On] June 12, 2010, the Trustee was appointed to act as the chapter 13 trustee in the Debtor’s case (the “Case”). 3. The Trustee continues as the chapter 13 trustee in the Case. 4. This Court has jurisdiction over this proceeding pursuant to 28 U.S.C. §§ 157 and 134 [sic ]. 5.Venue is proper pursuant to 28 U.S.Cd§ 1409. ' 6. ’ This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A).' 7. As of the Petition Date, the Debtor . owned the real estate and improvements located at 38 Corwin Circle, Hampton, Virginia 23666 (the “Property”). 8. The Debtor has remained" }, { "docid": "19286548", "title": "", "text": "civil proceeding arising in, under and related to a case filed by the Defendant as Debtor under Title 11, Chapter 7 of the United States Bankruptcy Code. 2. This court has jurisdiction over the Complaint pursuant to 28 U.S.C. § 1334, and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. 3. This matter constitutes a “core” proceeding within the meaning of 28 U.S.C. § 157(b)(2)(J). 4. Venue is proper in this court pursuant to 28 U.S.C. § 1409. Objections To Discharge — Count I 11 U.S.C. §§ 727(a)(4)(A), 727(a)(2)(B) and 727(a)(3) 5. Section 727(a)(4)(A) of the Bankruptcy Code provides that a debtor will be denied a discharge in bankruptcy if he “knowingly and fraudulently ... in or in connection with the case ... made a false oath or account....” In order to be denied a discharge under § 727(a)(4)(A), the Plaintiff must prove by a preponderance of the evidence that Debtor made under oath false statements, known to be false, with intent to deceive, and that those statements were material to the bankruptcy ease. In re Bailey, 147 B.R. 157, 162 (Bankr.N.D.Ill.1992); In re Matter of Rubel, 1989 WL 105751, at 4 (Bankr.N.D.Ill.) 6. Any false statement made in a bankruptcy petition, schedule or statement of financial affairs constitutes a false oath within the meaning of Section 727(a)(4)(A). Sec. Fed.R.Bankr.P. 1008. Additionally, false testimony given, during a 341 creditors meeting under 11 U.S.C. § 341 or during a deposition may also satisfy this element. In re Yonkers, 219 B.R. 227, 232 (Bankr.N.D.Ill.1997). 7. The preceding Findings Of Fact establish that the Debtor/Defendant here repeatedly provided false or misleading information in this bankruptcy under oath, which he knew to be false, concerning his property, income, and financial affairs. 8. A statement is deemed material for purposes of Section 727(a)(4)(A) if it relates to the debtor’s estate, discovery of assets, disposition of property or a debt- or’s entitlement to discharge. Yonkers, 219 B.R. at 234; In re Baker, 205 B.R. 125, 133 (Bankr.N.D.Ill.1997). 9. The false statements contained in Debtor’s Schedules and Statement of" }, { "docid": "11587005", "title": "", "text": "This timely appeal ensued. JURISDICTION Subject-matter jurisdiction was founded on 28 U.S.C. § 1334 over this core proceeding under 28 U.S.C. § 157(b)(2)(A) and (I). An order denying a motion to dismiss a bankruptcy case is ordinarily interlocutory. Sherman v. SEC (In re Sherman), 491 F.3d 948, 967 n. 24 (9th Cir.2007)(chapter 7); Dunkley v. Rega Props., Ltd. (In re Rega Props., Ltd.), 894 F.2d 1136, 1137-39 (9th Cir.1990)(chapter 11). We exercised our authority to grant leave to appeal the interlocutory order, fixed an expedited schedule, and declined to issue a stay pending appeal. Hence, our jurisdiction is founded upon 28 U.S.C. § 158(a)(3). ISSUES 1. Whether a voluntary chapter 7 debt- or can compel dismissal of a chapter 7 case because he decides he prefers his Seventh Amendment jury trial right over restructuring debtor-creditor relations under equitable bankruptcy jurisdiction. 2. Whether the bankruptcy court abused its discretion in concluding that the movant did not demonstrate “cause” sufficient to warrant dismissal of the bankruptcy case under § 707(a). STANDARD OF REVIEW We review the denial of debtor’s motion to dismiss his chapter 7 case for abuse of discretion. Bartee v. Ainsworth (In re Bartee), 317 B.R. 362, 365 (9th Cir. BAP 2004). If the trial court applied a correct legal standard and did not operate under a clearly erroneous view of the facts, we can reverse only if we have a definite and firm conviction that there was a clear error of judgment in the conclusion reached. United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002); Bartee, 317 B.R. at 365. DISCUSSION Hickman found bankruptcy inhospitable. The trustee asked hard questions and objected to discharge. Creditors filed non-dischargeability actions. Hickman wanted to extricate himself by having the case dismissed. The court rejected his argument that a new-found Seventh Amendment preference for jury trial in a non-bankruptcy court constituted sufficient “cause” under § 707(a) to dismiss his voluntary case over opposition and was not persuaded that the balance of interests favored dismissal. I As Hickman relies primarily upon his Seventh Amendment right to trial by jury in the dispute with" }, { "docid": "18302929", "title": "", "text": "OPINION NOVALYN L. WINFIELD, Bankruptcy Judge. This matter came before the Court in connection with the Trustee’s request for entry of a default judgment against the debtor, revoking his discharge under 11 U.S.C. §§ 727(d)(1) , and (d)(2). As set forth at greater length below, the Trustee’s request to revoke the debtor’s discharge is denied. The Court has jurisdiction to review and determine this matter pursuant to 28 U.S.C. §§ 1334 and 157(a), and the Standing Order of Reference issued by the United States District Court for the District of New Jersey on July 23, 1874. This adversary proceeding is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (J). The following constitutes the Court’s findings of fact and conclusions of law as required by Federal Rule of Bankruptcy Procedure 7052. STATEMENT OF FACTS A. Procedural History The debtor, Sami Abdelmassia (“Debt- or”), filed a voluntary Chapter 7 petition on August 31, 2001. Shortly thereafter Steven P. Kartzman (“Trustee”) was appointed as the case trustee. It appears that the case was initially administered as a routine No Asset Chapter 7 case. A Meeting of Creditors pursuant to § 341(a) was held on October 5, 2001, and the Trustee’s Report of No Assets was filed on October 10, 2001. Debtor was granted a discharge by order dated December 10, 2001 and the case was closed on February 21, 2002. Over two and one-half years later, the Debtor moved to reopen his case to amend Schedule B of his Schedules of Assets and Liabilities to add his 100% interest in Sami Abdelmassia Included, Inc. (“SAI”). He claimed that SAI’s sole asset was an arbitration proceeding against Merrill Lynch, Pierce Fenner and Smith, Inc. (“Merrill Lynch”). Debtor also sought to amend Schedule C to claim the value of his shares in SAI as exempt property. In his motion to reopen, Debtor stated that in or about November, 2000 he transferred approximately $1,000,000 from his personal accounts into a Merrill Lynch account in the name of SAL He claimed that he transferred his personal funds into a corporate entity on the advice of an" }, { "docid": "18673215", "title": "", "text": "York counsel and the Chapter 7 trustee and debtor’s counsel proves that Cadle was aware that debtor had failed to disclose the true nature of his interest in the Certificate prior to the entry of the discharge order. As such, Cadle is barred from seeking to revoke the discharge order on that basis. See Brown v. Barley (In re Barley), 130 B.R. 66, 70 (Bankr.N.D.Ind.1991); Bear Stearns & Co., Inc. v. Stein (In re Stein), 102 B.R. 363, 367-368 (Bankr.S.D.N.Y.1989); In re Kirschner, 46 B.R. at 586-597. Finally, during argument, Cadle conceded what debtor’s counsel contended in his January 26 letter: the Certificate is worthless. Debtor’s discharge should not be revoked pursuant to § 727(d)(1) for failure to schedule an asset unless the fraud has a demonstrable impact on distribution to creditors. See Donovan v. La Porta (In re La Porta), 26 B.R. 687, 692 (Bankr.N.D.Ill.1982). There is no dispute that the Certificate is worthless. Thus, it is of no moment whether debtor possesses an interest in the Certificate, as Cadle contends, or, as debtor maintains, only a right to share a commission in the event Atlantic Ventures can sell the Certificate. In either case, debtor’s “asset” has no value. This case shall not be reopened to require the trustee to administer that asset. Conclusion Based upon the foregoing, the motion is denied. . This Memorandum Decision constitutes our findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(c), as made applicable herein by Fed.R.Bankr.P. 7052 and 9014. Our subject matter jurisdiction of this motion is predicated on 28 U.S.C. §§ 157(a) and 1334(b), and the \"Standing Order of Referral of Cases to Bankruptcy Judges” of the United States District Court for the Southern District of New York, dated July 10, 1984 (Ward, Acting C.J.). This is a core proceeding. See 28 U.S.C. § 157(b)(2)(A). . “Cadle App.” refers to Cadle's Application In Support Of Motion To Reopen Chapter .7 Case, dated February 28, 1994. . Debtor is acting pro se in this motion. . That rule states: A complaint to determine the dischargeability of any debt [of a" }, { "docid": "4797240", "title": "", "text": "to do so requires the court to deny the debt- or’s discharge under Section 727(a)(5). This court also finds that the debtor’s discharge should be denied pursuant to Section 727(a)(4)(A), which provides: (a) The court shall grant the debtor a discharge, unless— ****** (4) the debtor knowingly and fraudulently, in connection with the case— (A) made a false oath or account; 11 U.S.C. § 727(a)(4)(A). In order to sustain an objection to discharge under this section, it must be established that the debtor made a false oath or account knowingly with the intent to defraud his creditors. See generally, 4 Collier on Bankruptcy ¶ 727.04 at 727-47 (15th ed. 1985). This false oath must relate to a material fact. In re Braidis, 27 B.R. 470, 472 (Bankr.E.D.Pa.1983). The debtor made materially false statements in his omission of his interest in the Lutz Road property on the schedules filed with this court. Further, the debtor failed to list on his schedules, assets owned by him as of the petition date including: (1) household goods, supplies and furnishings, (2) books, (3) wearing apparel, jewelry and other personal possessions, and (4) business equipment. The debtor also failed to reveal the transfer of the paper Mill Road property and Lot 1, Orchard Lane in his statement of affairs. These omissions have directly hindered and delayed the trustee in the administration of this estate. Even after instruction from the trustee to file amended schedules to rectify the omissions, the debtor failed to comply. The debtor’s failure, after such direction, confirms that the aforementioned omissions were intentional on the debtor’s part. The debtor has offered no satisfactory explanation for his actions or lack thereof. Consequently, the debtor’s discharge will be denied pursuant to Section 727(a)(4)(A). In addition, the debtor, under oath, at his Section 341(a) meeting of creditors stated that his schedules were true and correct. Those schedules failed to reveal that the debtor had an interest in the real estate that constituted his principal residence. The debtor’s false statement is a sufficient basis for denial of his discharge. Furthermore, at the trial of this matter" }, { "docid": "14573145", "title": "", "text": "of the proceedings.” Beaubouef 966 F.2d at 178; In re Colburn, 145 B.R. 851, 857 (Bankr.E.D.Va.1992); Sapru, 127 B.R. at 314; In re Bailey, 53 B.R. 732, 735 (Bankr.W.D.Ky.1985). However, in the present case, while the Trustee has demonstrated that the Debtor fraudulently filed false income tax returns with the Internal Revenue Service, the complaint fails to show that the income tax returns constitute a false statement made under oath during the course of bankruptcy proceedings. In fact, any falsity on the Debtor’s income tax returns which was admitted by the Debtor, herself, during the course of the Section 341 meetings is a matter which may be of concern to the Internal Revenue Service. Therefore, the denial of the Debtor’s discharge pursuant § 727(a)(4)(A) is not justified. CONCLUSIONS 1. This Court has jurisdiction over this matter pursuant 28 U.S.C. §§ 1334 and 157(b)(2)(J) as it is a core proceeding concerning an objection to the discharge of the Debtor. 2. The discharge of the Debtor is denied pursuant to § 727(a)(3). SUBMIT AN ORDER CONSISTENT WITH THIS OPINION. . Pursuant to § 341 of the Bankruptcy Code, the trustee must convene and preside over a meeting of the debtor’s creditors. Such meeting shall include the examination of the debtor under oath. Fed.R.Bankr.P. 2003(b)." }, { "docid": "6610627", "title": "", "text": "FINDINGS OF FACT AND CONCLUSIONS OF LAW MARY D. SCOTT, Bankruptcy Judge. THIS CAUSE came before the Court upon the complaints objecting to discharge and dischargeability. The Bank of Newport and the trustee object to the discharge of Albert Beshears under sections 727(a)(5), (3), (2), and (4)(C). The Bank of Newport objects to Nancy Beshears King’s discharge under section 727(a)(5), while the trustee objects to King’s discharge under sections 727(a)(5) and (B). This bankruptcy case was filed on December 1, 1993, at the behest of Albert Beshears. Albert Beshears executed most, but not all, of the required signature lines on the petition and schedules which were filed with the petition, and forged his wife’s name where her signature was required. Nancy-King claims to have been unaware of the bankruptcy case until approximately the time she received her notice to attend the first meeting of creditors, 11 U.S.C. § 341(a), shortly after the petition was filed before the schedules were filed in the case. She was not only aware of the bankruptcy before the schedules were filed, she delivered the information for the schedules to her attorney by facsimile transmission. King attended the section 34Í meeting, the continued meeting, and, later, when she acquired separate counsel, filed some amended schedules. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a), 1334. Moreover, this Court concludes that this is a “core proceeding” within the meaning of 28 U.S.C. § 157(b)(1) as exemplified by 28 U.S.C. § 157(b)(2)(J). The Statute The discharge in bankruptcy is the foremost remedy to effectuate the “fresh start” which is the goal of bankruptcy relief. Ray v. Graham (In re Graham), 111 B.R. 801, 805 (Bankr.E.D.Ark.1990). Consequently, the Code provisions in any objection to discharge must be strictly construed. Panuska v. Johnson (In re Johnson), 80 B.R. 953 (Bankr.D.Minn.1987), aff'd, 101 B.R. 997 (D.Minn.1988), remanded for further proceedings, 880 F.2d 78 (8th Cir.1989). The burden is upon the objecting party to prove all elements of the statute setting forth grounds for denying discharge. Graham, 111 B.R. at 805. Section 727(a), provides as follows: The court" } ]

[ { "docid": "14403235", "title": "", "text": "court saw and heard the witnesses.” Clearly, the board of review was acting within the authority of Article 59 (b) when it approved a finding of guilty of unpremeditated murder, a lesser included offense of that found by the court-martial. If it had that power then by Article 66(c), it could approve only such sentence or part thereof as was correct in law. The reduced finding rendered the sentence as originally imposed illegal so unless the board had the power to change the sentence to confinement it had no alternative other than to grant a new trial. Going one step further, if it must grant a new trial then Congress intended to restrict Article 59 (b) in a manner neither expressed nor implied. It is a cardinal rule of statutory construction that we should in construing the Code, if reasonably possible, so interpret it as to give force and effect to each separate and distinct provision. If we were to hold that the board of review had not the power and authority to do as it did in this case, then the provisions of Article 59(b) of the Code would be rendered meaningless when a death penalty was imposed by a court-martial. To avoid this, we seek to find if the various sections can be construed reasonably so as to bring about what we believe was the Congressional intent, namely, to permit boards of review to approve any lesser included offense than the one found by the court-martial, if sustained by the evidence, regardless of the nature or severity of the crime. We have little doubt about the power of Congress to delegate to boards of review the right to commute sentences so long as the affirmed punishment did not exceed in severity the imposed penalty. Particularly would this be true when fact-finding bodies make determinations which render the imposed penalty illegal. Stated concretely, Congress could have expressly authorized boards of review to affirm a sentence of confinement in lieu of a death penalty. One could hardly reason that the former is not a lesser sentence although necessarily a different" } ]

[ { "docid": "1601284", "title": "", "text": "mentioned, they could not suspend a sentence or any portion thereof. In United States v. Bigger, 2 USCMA 297, 8 CMR 97, we were concerned with the power of the board of review to affirm a sentence of confinement for life when it found facts which made a death penalty illegal. We held that boards of review, by Congressional authority, could affirm such a sentence even though by so doing a change in the type of punishment resulted. It should be apparent from the short resume of those cases that we were not confronted with any question of the power to reduce. While boards of review cannot change the nature of the punishment, except as might be involved in the Bigger case, that does not prevent them from treating an accused with less rigor than their authority permits. The difficulty we encounter in this case is that we are unable to ascertain whether the members of the board of review understood clearly that principle. Before discussing the particular statements made by the board of review in the memorandum recommending clemency, we desire to make crystal clear our views on two principles bordering on those involved in this case. Firstly, we are cognizant of the strict rule which applies to attempts to impeach verdicts and findings, and we are not disposed in any way to relax that rule. Secondly, we do not desire to influence adversely the free exchange of information between boards of review and other military authorities charged with the responsibility of considering the appropriateness of any sentence. Congress has seen fit to grant to certain reviewing au- thorities the right to commute or suspend the execution of a sentence, but it did not extend that authority to boards of review. Accordingly, there is no reason why members of these boards should not make recommendations to appropriate authorities to exercise any powers of clemency or commutation not possessed by them. However, there is a duty on members of boards of review to act within their own sphere and they should not approve a sentence they consider excessive and then" }, { "docid": "1620688", "title": "", "text": "be affirmed. The board had to find that these findings were correct in law and in fact because under its view either finding could have been affirmed. Accordingly it must find authority for its decision in that part of the Article which states, “and determines, on the basis of the entire record, should be approved.” The pivotal question thus becomes, what was the intent of Congress when it used that phrase? First, it is to be noted that the phrase is equally applicable to both findings and sentence, and we are sure that in dealing with findings, Congress intended the determination to be limited to evi-dentiary matters in the record which have some effect on the sufficiency or insufficiency of proof. While a board may weigh facts, it cannot go outside the record and an accused is not entitled to a hearing de novo. Certainly,, Congress either intended to require boards of review to conform to the law as it applies generally to appellate’ agencies or it intended to permit them to act unhampered by legal rules. I am certain Congress intended the former and that construction is aided by the other parts of the Code which show the difference between the powers vested in a convening authority and those on boards of review. Article 64 of the Code, which clothes the convening authority with discretion, states: “In acting on the findings and sentence of a court-martial, the convening authority may approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he finds correct in law and fact and as he in his discretion determines should be approved. Unless he indicates otherwise, approval of the sentence is approval of the findings and sentence.” It must be noted that in this Article Congress mentioned discretion while it did not do so in Article 66. Not having been given discretionary powers, the boards are limited by principles generally governing statutory appellate tribunals with the exception that they have been delegated the power to weigh evidence. As Judge Ferguson said in United States v Waymire," }, { "docid": "7368916", "title": "", "text": "of the law officer. When his fate was decided by the board of review, it was with the greatest reluctance on their part that the members affirmed only what was legally permissible, that is, a sentence including ten years’ confinement. Boards of review have power to reassess sentences in the light of the entire record and when they use the correct measuring rod, we are not compelled to interfere. Our dismissal of the one specification does not change the despicable nature of accused’s misconduct nor does it require use of a standard different from that employed by the board in determining the appropriateness of sentence. As we read the record, the accused should be grateful he was tried under military law, for it is our firm conviction it is not at all unlikely he would have suffered greater punishment had he been tried by a forum where the death penalty could have been imposed. The United States Supreme Court in Jackson v Taylor, 353 US 569, 77 S Ct 1027, 1 L ed 2d 1045, and Fowler v Wilkinson, 353 US 583, 77 S Ct 1035, 1 L ed 2d 1054, has affirmed our holdings that an accused is not, as a matter of law, entitled to a rehearing on sentence when a board of review has affirmed a sentence based on a reduction of charges. While in certain instances where there has been a great disparity between the seriousness of the offenses considered by the court-martial and those affirmed by reviewing authorities, we have determined that, in the interest of justice, a redetermination should be made by the court-martial, we find nothing in this record which brings the accused under that rule. On the contrary, we note that even though the board of review affirmed accused’s conviction of specification 1, it held that the four offenses constituted but a single crime for purposes of punishment. Thus, they reassessed sentence upon the basis of a single finding of the transaction in its most serious aspect, viz: one violation punishable, inter alia, by confinement for ten years. And even though we" }, { "docid": "22870822", "title": "", "text": "of sentence with that of clemency, and that he was not consciously determining the former with a proper understanding of the maximum sentence to which the accused had been subjected by the findings of the court-martial. Such a contention however, elevates form over substance. Nor are there many who are fit to cast the first stone at one who admixes in his mental processes the concept of legal appropriateness with that of clemency.” In United States v Freeman, 4 USCMA 76, 15 CMR 76, Judge Latimer referred to the alternatives available to a board of review when it affirms a finding of guilty which would support the death sentence adjudged by the court-martial. He there said (page 81): “At best the board had three possible alternatives. First, it could affirm the sentence as originally imposed; second, it could affirm the sentence and recommend that clemency action be exercised by those in whom such authority was vested; and third, it could direct a rehearing, if the sentence could not be justified reasonably upon the affirmed findings.” The second and third alternatives noted by Judge Latimer indicate a view that an “appropriate sentence” is different from a “clemency sentence.” The same distinction is implied in the majority’s opinion in United States v Goodwin, 5 USCMA 647, 18 CMR 271. It was there said (page 657): “. . . We thereupon concluded the law prevented boards of review from affirming an illegal sentence and when that situation arises the power to reduce the sentence to a legal one is an inherent power of the board. No question of policy or clemency was involved in that affirmance, as Congress had set the limit beyond which the sentence could not go.” See also United States v Parker, 6 USCMA 75, 87, 19 CMR 201. However, in United States v Cavallaro, 3 USCMA 653, 14 CMR 71, Judge Lati-mer writing for the Court, did not preclude a description of the power of the board of review as a clemency power. He there said (pages 655-656): “. . . While boards of review cannot change the nature" }, { "docid": "22870823", "title": "", "text": "The second and third alternatives noted by Judge Latimer indicate a view that an “appropriate sentence” is different from a “clemency sentence.” The same distinction is implied in the majority’s opinion in United States v Goodwin, 5 USCMA 647, 18 CMR 271. It was there said (page 657): “. . . We thereupon concluded the law prevented boards of review from affirming an illegal sentence and when that situation arises the power to reduce the sentence to a legal one is an inherent power of the board. No question of policy or clemency was involved in that affirmance, as Congress had set the limit beyond which the sentence could not go.” See also United States v Parker, 6 USCMA 75, 87, 19 CMR 201. However, in United States v Cavallaro, 3 USCMA 653, 14 CMR 71, Judge Lati-mer writing for the Court, did not preclude a description of the power of the board of review as a clemency power. He there said (pages 655-656): “. . . While boards of review cannot change the nature of the punishment, except as might be involved in the Bigger case, that does not prevent them from treating an accused with less rigor than their authority permits. “. . . Accordingly, there is no reason why members of these boards should not make recommendations to appropriate authorities to exercise any powers of clemency or commutation not possessed by them. However, there is a duty on members of boards of review to act within their own sphere and they should not approve a sentence they consider excessive and then appeal to others to reduce. All persons who have any responsibility in fixing, affirming, or reviewing sentences should meet their responsibility by adjudging or affirming a fair and just sentence without regard to any further reductive action that might be taken by others who will subsequently act on the record.” In no case has the Court attempted to affix a label to the sentence powers of the board of review. We were satisfied to examine each case and to determine whether the board of review did" }, { "docid": "22870818", "title": "", "text": "would necessarily prejudice the board against the accused. See: United States v Steber, 6-54-S-1273, February 15, 1955. These contentions bring us to the other certified questions. In combination, they concern the authority of the board of review to consider the convening authority’s synopsis of the information taken from the accused’s service record. The questions are as follows: “(1) Was the action of the Board of Review correct in denying the defense motion to strike from the convening authority’s action all references to non-judicial punishments previously imposed upon the accused ? “(2) If (1) above is answered in the affirmative, should the Board of Review have considered all of the matter contained in the said synopsis in its determination of the appropriateness of the sentence? . • “(3) Is a Board of Review authorized to exercise clemency, and if so, to what extent? “(4) If (3) above is answered in the' affirmative, should the Board of Review consider all of the matter contained in the said synopsis in the determination of whether or not to exercise clemency?” For purposes of military law a board of review is a judicial body, United States v Whitman, 3 USCMA 179, 11 CMR 179. It is however, the creation of Congress. It can, therefore, act only within the direct or reasonably implied scope of the powers given to it by the Uniform Code. United States v Reeves, 1 USCMA 388, 3 CMR 122; United States v Brasher, 2 USCMA 50, 6 CMR 50. The grant of authority to the board of review is found in Article 66, supra. Important here is that part of the Article which provides that the board of review shall: “. . . affirm . . . the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” Since the effective date of the Uniform Code, we have decided more than a score of cases which considered some aspect of the board of review’s power over the sentence. In most instances, it" }, { "docid": "14403236", "title": "", "text": "it did in this case, then the provisions of Article 59(b) of the Code would be rendered meaningless when a death penalty was imposed by a court-martial. To avoid this, we seek to find if the various sections can be construed reasonably so as to bring about what we believe was the Congressional intent, namely, to permit boards of review to approve any lesser included offense than the one found by the court-martial, if sustained by the evidence, regardless of the nature or severity of the crime. We have little doubt about the power of Congress to delegate to boards of review the right to commute sentences so long as the affirmed punishment did not exceed in severity the imposed penalty. Particularly would this be true when fact-finding bodies make determinations which render the imposed penalty illegal. Stated concretely, Congress could have expressly authorized boards of review to affirm a sentence of confinement in lieu of a death penalty. One could hardly reason that the former is not a lesser sentence although necessarily a different kind. While not so stated in precise language, the authority to do so is found in the quoted provisions of the Code. There is no Congressional command that boards of review do not have the authority. The most that can be said in that respect is that the Act is silent. Therefore, each specific clause can be given effect without directly contravening any other provision of the Code. If we consider, compare, and fit the quoted provisions into a pattern, we must conclude that Congress intended to authorize boards of review to affirm findings of guilty of lesser included offenses and that if by so finding the sentence imposed becomes illegal, to permit the board to substitute a lesser legal sentence. Conceding this permits boards of review to commute in the field of murder, it is what we believe Congress intended to accomplish when it authorized boards of review to evaluate facts, reduce findings, and adjust sentences to fit the offenses affirmed. We might further test this construction of the act by the principle that" }, { "docid": "14403233", "title": "", "text": "punishment in degree or quantity only; the power to mitigate not authorizing the changing of the species of the penalty adjudged. But there are certain punishments not susceptible of being reduced in degree ; consequently where one of these is imposed by the court, and the same is deemed too severe a penalty to be inflicted upon the accused, who yet, it is considered, deserves some measure of punishment, the mere power of mitigation is inadequate for the occasion, and commutation, or the substitution of a lesser penalty of a different nature, must be resorted to. Death and dismissal, for example, are punishments not admitting of lesser degrees or capable of being mitigated; they must therefore, when deemed too rigorous, be exchanged or commuted for distinct penalties of minor severity.” We are forced to conclude that the sentence was commutation but that alone does not control the holding on this issue. There is in addition the question of whether Congress, expressly or by implication, granted to boards of review the right to commute in death sentence cases. In addition to Article of War 92 previously quoted, there are two Articles of the Uniform Code of Military Justice which shed light on this proposition. Article 59(b) of the Code, 50 USC § 646, provides: “Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.” Article 66(c), 50 USC § 653, grants the following additional powers to boards of review: “In a case referred to it, the board of review shall act only with respect to the findings and sentence as approved by the convening authority. It shall affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record it shall have authority to weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial" }, { "docid": "1601280", "title": "", "text": "his fear for a period of three days, the following members of the court recommend Private First Class Mariano Cavallaro to the clemency of reviewing authorities.” The convening authority reduced the period of confinement to 10 years but otherwise approved the findings and sentence. On January 28, 1953, the board of review in the office of The Judge Advocate General of the Navy, after reviewing the record, issued a form decision affirming the findings and sentence as approved by the convening authority. On the same date, the board of review attached to the record a memorandum in letter form addressed to The Judge Advocate General recommending that substantial clemency be exercised in the case. On February 27, 1953, the Assistant Secretary of the Navy for Air reduced the period of confinement to five years and on April 29, 1953, accused filed a petition for review with this Court. We granted the petition, expressly limiting ■ our consideration ’to the question of whether the language found in board of review’s recommendation for clemency impeached its finding that the sentence was correct in law and in fact. Disposition of that issue makes it necessary to discuss the powers and duties of boards of review as affecting the action they might take in affirming a sentence. Article 66, Uniform Code of Military. Justice, 50 USC § 653, prescribes for the establishment, powers, and duties of boards of review. Subsection (c) thereof states as follows: “(c) In a case referred to it, the-board of review shall .act only with respect to the findings and sentence-as approved by the convening authority. It shall affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In con sidering the record it shall have authority to weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.” The nature of the power which Congress intended to confer upon" }, { "docid": "23022408", "title": "", "text": "of confinement from life to twenty years. However, this action was based upon a clemency recommendation by his staff judge advocate, and clearly was not intended as a correction of the trial error. The board of review affirmed the conviction without opinion. But, in a statement titled, “Memorandum for Record,” the board of review noted that it had “made an independent redeter-mination of the appropriateness of the approved sentence on the basis of the crime of premeditated murder alone, and determine [s], on the basis of the entire record, without regard to the offenses of absence without leave and larceny, that the sentence as approved by the convening authority is appropriate. It of course necessarily follows that if such sentence is appropriate for premeditated murder alone, it should be approved for all three offenses, and we so find.” Considering the clear and strong language of the memorandum, it would appear that no substantial purpose would be served by returning the case to the board of review for reconsideration of the sentence. When the board of review acted, however, it did so on the theory that the findings of guilty of larceny and unauthorized absence were legally correct. It is barely possible that this belief influenced the board of review. To remove any possibility that the findings of guilty which we have dismissed had any effect on the final sentence, I would return the case to the board of review for redetermination of the sentence. However, my brothers believe that the possibility is too slight to justify a remand of the case. In their opinion, on the facts of this case, it would be inappropriate to continue the litigation. United States v. Crusoe, 3 USCMA 793, 14 CMR 211. The decision of the board of review is affirmed. Judges LATIMER and BROSMAN concur." }, { "docid": "14403230", "title": "", "text": "was committed, provides: “Any person subject to military law found guilty of murder shall suffer death or imprisonment for life, as a court-martial may direct; but if found guilty of murder not premeditated, he shall be punished as a court-martial may direct, . . . Under the provisions of the foregoing Article of War, the death sentence could only be imposed if the court-martial returned a finding of premeditated murder and it could only be affirmed by the board of review if the finding of guilty was affirmed. The finding of premeditated murder and sentence of death are so inextricably tied together that when one falls, the other does likewise. Here the sentence of death as originally imposed by the court-martial could not stand because a finding of the lesser offense only was affirmed. To prevent what would be the affirmance of an illegal sentence, the board concluded to affirm only so much of the sentence as provided for confinement for life and a dishonorable discharge. That portion of the sentence involving the punitive discharge may be disposed with little discussion. The Manual for Courts-Martial, United States, 1951, specifically provides in paragraph 126, at page 206, as follows: “. . . . A dishonorable discharge is by implication included in a death sentence. When life imprisonment is adjudged, the court shall also adjudge dishonorable discharge and total forfeitures.” A dishonorable discharge being necessarily included within the death sentence that much of the original sentence could be affirmed by the board of review without in any way changing the form or increasing the severity of the sentence. Whether the board of review’s action in affirming a sentence of confinement for life amounted to commutation and as such exceeded its authority poses the last issue. Appellate defense counsel contend that such is the legal effect of the board’s holding and that it is an illegal act since that agency has been-granted no commuting powers, such authority having been delegated exclusively to The President and Secretaries of the Departments by Article 71 .(a) and (b), Uniform Code of Military Justice, 50 USC §" }, { "docid": "22918937", "title": "", "text": "of the trial court’s task, but their function in this particular is secondary and derivative. They merely ‘approve’ or ‘disapprove,’ ‘affirm’ or ‘reverse.’ The trial court, on the other hand, ‘imposes’ — it determines as an original, a basic, and a primary proposition.” The Government argues that the sentence of the court-martial, founded on all the specifications, can be sustained by the one affirmed because the board of review, after considering the modified findings, affirmed it as appropriate. In the usual situation, this Court would be powerless to interfere wth a sentence, affirmed by the board of review but here that tribunal was faced with a predicament. Under the Code and our previous opinions, it has no power to commute a sentence of dismissal or death, where that sentence is legal. Article 71, Uniform Code of Military Justice, 50 USC § 658; United States v. Bigger, 2 USCMA 297, 304, 8 CMR 97. That power has been delegated by Congress to certain officials of the executive department. Thus, in so far as its own power to deal with this sentence is concerned, the board could only affirm the sentence adjudged or disapprove the sentence in its entirety. Having affirmed one finding, the board of review would not be apt to leave the accused unsentenced nor should it so do. To all intents and purposes, the restriction thus made the sentence, mandatory on the board of review which decreases to a vanishing point its obligation to affirm only such parts, or amount of sentence, as it finds correct in fact and law and determines on the entire record should be approved. Article 66, Uniform Code of Military Justice, 50 USC § 653. One other avenue remained open to the. board of review to correct any inequities in this litigation. A rehearing before the court-martial could have been ordered to permit a sentence to be adjudged in the light of the offense committed, if a finding of guilty on the one specification resulted. The board of review elected not to pursue that method and, for reasons which I will hereinafter set forth," }, { "docid": "23626099", "title": "", "text": "gestures are directed, and to forestall the commission of an offense by an otherwise innocent party. The communication of a threat, however, forecasts violent action by the person employing it. Thus, the prevention of greater harm, by the guilty person, is the purpose of its punishment. In its concluding argument the defense urges that if an accused were to preface an actual assault and battery with a threat to commit that offense then he could be subjected to a far greater penalty. Numerous other instances of disparity between the penalty for the completed offense and that threatened are suggested to us. This disparity, it is contended, reduces the Government’s position here to an absurdity and conclusively demonstrates the necessity for applying the Norris and Johnson view to this case. This argument completely overlooks two vital considerations. First, the President, in accordance with his authority in such matters, has prescribed the applicable maximum for communication of a threat. As indicated above, we find no abuse of discretion in his exercise of that authority in this instance. Secondly, the responsibility for the imposition of a specific sentence in a particular case rests primarily upon the court-martial. United States v. Brasher, 2 USCMA 50, 6 CMR 50. The specific penalty assessed by the court-martial must, in every case, be legal, appropriate, and adequate, and should be arrived at only after mature consideration of all relevant circumstances. Manual for Courts-Martial, United States, 1951, paragraph 76. Courts are further enjoined by paragraph 127c of the Manual, supra, to restrict imposition of the greatest permissible punishment to cases involving aggravating circumstances sufficient to justify such severity. Should the sentence adjudged by the trial court appear inappropriate under the circumstances disclosed by the record of trial, the board of review is empowered by Article 66(e) of the Code, supra, 50 USC § 653, to reduce it to a sentence which is appropriate, in fact. Should these safeguards prove inadequate and a grossly excessive sentence is affirmed by a board of review, then this Court may be called upon to determine its power to set it aside. Beyond" }, { "docid": "14397779", "title": "", "text": "with a dangerous weapon were committed, and that the instructions were appropriate for those offenses. The court-martial having found the accused guilty, it follows that all elements involved in the lesser offenses were considered and proven. Under Article 59 (b), Uniform Code of Military Justice, 50 USC § 646, we have power to affirm or approve so much of the finding as includes the lesser included offense and we, therefore, affirm findings of guilty of assaults with a dangerous weapon alleged under Charge II. This does not, however, dispose of the sentence. We are here faced with a series of heinous offenses; two Koreans, possibly three, were killed, three others wounded, and one child raped. The record is barren of any extenuating or mitigating circumstances. While we have reduced three assault offenses, at least one degree, and while we ordinarily consider it appropriate to have the board of review reconsider the sentence in the light of our holding, this is not made mandatory by the Code. The reduction in the nature and type of offenses in this case is so relatively unimportant, when compared with the more serious crimes committed by the accused, that we do not believe any board of review would commute the death sentence, assuming it had the power so to do. Accordingly the decision of the board of review is affirmed. Chief Judge Quinn concurs. BROSMAN, Judge (concurring): I concur fully in the opinion of the Court, but I should like to add a brief caveat. In United States v. Keith (No. 226), 4 CMR 34, decided July 3, 1952, we held that we were without statutory authority to make a determination of sentence appropriateness as a matter of fact. However, we left “for future consideration the question of whether appropriateness — or its opposite — may be determined by us in a proper case as a matter of law.” I think it important to note that in the present case we have not determined appropriateness — that is, adequacy— either as a matter of fact or as a matter of law, although the sentence as" }, { "docid": "23022407", "title": "", "text": "which result in denial of effective aid of counsel may have different effects. Cf. United States v. Vanderpool, supra. In this case, all offenses occurred in the course of a single, continuous transaction.' We need not, therefore, engage in “nice calculations” as to whether the accused was prejudiced in one or the other of the offenses. We conclude that the board of review erred in not ordering a rehearing on all charges, and we set aside the findings of guilty of larceny and unauthorized absence. We believe that the interests of justice will be best served by dismissal of those charges, and we order them dismissed. See: United States v. Deain, 5 USCMA 44, 17 CMR 44. At the trial the court-martial was instructed that in its deliberations on the sentence, it could consider the findings of guilty approved by the board of review. Cf. United States v. Field, 5 USCMA 379, 18 CMR 3. In view of our determination that these findings be set aside, this was error. The convening authority reduced the period of confinement from life to twenty years. However, this action was based upon a clemency recommendation by his staff judge advocate, and clearly was not intended as a correction of the trial error. The board of review affirmed the conviction without opinion. But, in a statement titled, “Memorandum for Record,” the board of review noted that it had “made an independent redeter-mination of the appropriateness of the approved sentence on the basis of the crime of premeditated murder alone, and determine [s], on the basis of the entire record, without regard to the offenses of absence without leave and larceny, that the sentence as approved by the convening authority is appropriate. It of course necessarily follows that if such sentence is appropriate for premeditated murder alone, it should be approved for all three offenses, and we so find.” Considering the clear and strong language of the memorandum, it would appear that no substantial purpose would be served by returning the case to the board of review for reconsideration of the sentence. When the board of" }, { "docid": "14403229", "title": "", "text": "analyzing the evidence and measuring it by the appropriate standards for the particular offense, reduced the findings to unpremeditated murder only because they believed the record did not establish premeditation beyond a reasonable doubt. Thus the board only approved so much of the finding as it believed justified by the record which it is commanded to do by the Uniform Code of Military Justice, supra. It necessarily follows that evidence to support every element of unpremeditated murder was found present by both the court-martial and the board of review. Hence, the law officer’s error, if error it be, was cured by the board’s action. VI The principle issue raised in this cause is found in the question certified by The Judge Advocate General. It is as follows: “Is the action of the board of review with respect to the sentence of death correct in law within the purview of the Uniform Code of Military Justice, Article 66c?” The applicable portion of Article of War 92, supra, which was in effect at the time this offense was committed, provides: “Any person subject to military law found guilty of murder shall suffer death or imprisonment for life, as a court-martial may direct; but if found guilty of murder not premeditated, he shall be punished as a court-martial may direct, . . . Under the provisions of the foregoing Article of War, the death sentence could only be imposed if the court-martial returned a finding of premeditated murder and it could only be affirmed by the board of review if the finding of guilty was affirmed. The finding of premeditated murder and sentence of death are so inextricably tied together that when one falls, the other does likewise. Here the sentence of death as originally imposed by the court-martial could not stand because a finding of the lesser offense only was affirmed. To prevent what would be the affirmance of an illegal sentence, the board concluded to affirm only so much of the sentence as provided for confinement for life and a dishonorable discharge. That portion of the sentence involving the punitive discharge" }, { "docid": "14403237", "title": "", "text": "kind. While not so stated in precise language, the authority to do so is found in the quoted provisions of the Code. There is no Congressional command that boards of review do not have the authority. The most that can be said in that respect is that the Act is silent. Therefore, each specific clause can be given effect without directly contravening any other provision of the Code. If we consider, compare, and fit the quoted provisions into a pattern, we must conclude that Congress intended to authorize boards of review to affirm findings of guilty of lesser included offenses and that if by so finding the sentence imposed becomes illegal, to permit the board to substitute a lesser legal sentence. Conceding this permits boards of review to commute in the field of murder, it is what we believe Congress intended to accomplish when it authorized boards of review to evaluate facts, reduce findings, and adjust sentences to fit the offenses affirmed. We might further test this construction of the act by the principle that a statute should not be construed to bring about undesirable or ridiculous results. Were we to interpret the act to deny the disputed authority to boards of review, we would destroy their power to reduce a finding of guilty to one of a lesser included offense in the particular area where it should operate unrestrained. A board of review should explore carefully the possibility of reducing a capital offense, if the evidence does not establish all elements beyond a reasonable doubt; but, if it is to be circumscribed to such an extent that it has only one alternative, if it so finds, and that is to grant a rehearing, then one of the beneficent provisions of the Code is unduly burdened. Rehearings pose difficult problems of administration and there is likely to be a more restricted policy adopted by boards if they are denied part of the power necessary to tailor the sentence to fit the offense. Moreover, in those cases where benevolence is most needed, we cannot conceive that Congress intended to be so" }, { "docid": "22918938", "title": "", "text": "to deal with this sentence is concerned, the board could only affirm the sentence adjudged or disapprove the sentence in its entirety. Having affirmed one finding, the board of review would not be apt to leave the accused unsentenced nor should it so do. To all intents and purposes, the restriction thus made the sentence, mandatory on the board of review which decreases to a vanishing point its obligation to affirm only such parts, or amount of sentence, as it finds correct in fact and law and determines on the entire record should be approved. Article 66, Uniform Code of Military Justice, 50 USC § 653. One other avenue remained open to the. board of review to correct any inequities in this litigation. A rehearing before the court-martial could have been ordered to permit a sentence to be adjudged in the light of the offense committed, if a finding of guilty on the one specification resulted. The board of review elected not to pursue that method and, for reasons which I will hereinafter set forth, I feel the board of review thereby abused its discretion. On previous occasions when redetermination of the appropriateness of the sentence became necessary, we have been content to remand the case to a board of review for reassessment. This we have done because remand to the trial forum is seldom necessary to achieve a fair and just determination of the sentence. But that is not to say that such a proceeding may not be adopted when the only choice left to a board of review is to affirm the sentence or free an accused. That we have previously sought to make clear. United States v. Keith, supra. See our action in United States v. Field, 3 USCMA 182, 186, 11 CMR 182. Here, the findings to support the sentence were so blended together that they could not be disassociated to the extent they were without pulling the understructure out from beneath the sentence. Moreover, the board of review could not compensate by a reduction in sentence for those findings it reversed, had it been prone" }, { "docid": "22870821", "title": "", "text": "But how can this be known? Why am I not able to assert with equal assurance that both of these officers firmly believed that they were acting solely with respect to appropriateness of sentence? I do not do this, of course — and for the reason that I cannot be sure. And one who is certain in these premises must indeed possess a clearer idea than I of the practical distinction between a recommendation of clemency and one as to appropriateness of sentence. There is undeniably a clear theoretical distinction between the power to grant clemency and the power to determine appropriateness. However, in a situation in which both authorities reside in the same functionary, it is a little difficult for me to be sure of which is being exercised.” A short time later, writing for a unanimous court in United States v Crusoe, 3 USCMA 793, 797, 14 CMR 211, Judge Brosman said: “. . . It might be possible to contend that the staff judge advocate had hopelessly confused the matter of appropriateness of sentence with that of clemency, and that he was not consciously determining the former with a proper understanding of the maximum sentence to which the accused had been subjected by the findings of the court-martial. Such a contention however, elevates form over substance. Nor are there many who are fit to cast the first stone at one who admixes in his mental processes the concept of legal appropriateness with that of clemency.” In United States v Freeman, 4 USCMA 76, 15 CMR 76, Judge Latimer referred to the alternatives available to a board of review when it affirms a finding of guilty which would support the death sentence adjudged by the court-martial. He there said (page 81): “At best the board had three possible alternatives. First, it could affirm the sentence as originally imposed; second, it could affirm the sentence and recommend that clemency action be exercised by those in whom such authority was vested; and third, it could direct a rehearing, if the sentence could not be justified reasonably upon the affirmed findings.”" }, { "docid": "1620686", "title": "", "text": "judicial appellate body which is only empowered to set aside findings if it concludes the evidence is insufficient to convince the members beyond a reasonable doubt that the accused is guilty, or if some error of law has been committed which impairs their validity. As to sentence, its power is limited to reducing the punishment to limits which it concludes are appropriate for the offense or offenses committed. In this instance, the board has performed its duties as to sentence, so we are only confronted with its actions in the findings and its dismissal of one offense. I do not quite understand in what legal manner the board arrived at the conclusion that there was some infirmity in the findings which justified the order setting them aside. Any deficiency could not be factual as a plea of guilty was entered and it stands unchallenged. Therefore, the reason must find its root in an error of law. We are told by counsel for the appellee that the power to set aside findings for good reasons or no reason is implicit in Article 66 (c) of the Code, which is as follows: “In a case referred to it, the board of review may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.” I do not believe the grant of power is as broad as appellee contends in his brief, for as I interpret the section, the board is an appellate agency and can act only with respect to the findings made by the convening authority. It should only affirm such findings as it finds correct in law and in fact and determines on the entire record should" } ]

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

[ { "docid": "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": "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": "11429841", "title": "", "text": "of ap-pealability to include his Apprendi claim. II. Analysis A. Apprendi Claim On appeal of a district court’s decision to grant or to deny an application for writ of habeas corpus, we review all questions of law de novo. Small v. Endicott, 998 F.2d 411, 414 (7th Cir.1993). In order to appeal a district court’s ruling on a writ of habeas corpus, an applicant is required to obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B); Fed. R.App. P. 22(b)(1). Because the certificate in this case is limited to only the ineffective assistance claims, we will first address Rodriguez’s petition to expand the certificate to include his claim under Apprendi. “A certificate of appealability may issue [by a district or circuit judge] ... only if the applicant has made a substantial showing of the denial of a constitutional right ... [and the certificate] shall indicate which specific issue or issues satisfy that showing.” 28 U.S.C. § 2253(c); see also Williams v. Parke, 133 F.3d 971, 975 (7th Cir.1997). Rodriguez fails to make this showing, and therefore his request to expand the certificate of appealability is denied. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA), a substantial showing of a denial of a constitutional right “includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). Here, the district court did not address the substantive issues underlying Rodriguez’s proposed habeas claim under Apprendi, but instead denied his post-judgment motions that sought to raise that claim. When a district court denies a habeas claim on procedural grounds, a circuit court should only expand the certificate to include that claim if a prisoner at least demonstrates “that jurists of reason would find it debatable whether the petition states a valid claim" }, { "docid": "18128604", "title": "", "text": "and the files and records of the case conclusively show that the prisoner is entitled to no relief.’ ” United States v. Morrison, 98 F.3d 619, 625 (D.C.Cir.1996) (quoting 28 U.S.C. § 2255). The Court finds the record in this case conclusively shows that the defendant is not entitled to relief, and thus, will dismiss the motion without a hearing. III. CERTIFICATE OF APPEALA-BILITY A petitioner must obtain a certifícate of appealability (“COA”) before pursuing any appeal from a final order in a § 2255 proceeding. See 28 U.S.C. § 2253(c)(1)(B). When the denial of a § 2255 motion is based on the merits of the claims in the motion, a district court should issue a certificate of appealability only when the appeal presents a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, the Supreme Court stated that when a district court rejects the constitutional claims on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Because the defendant has not made a substantial showing of the denial of a constitutional right, and because the Court finds that reasonable jurists would not find the Court’s assessments of his constitutional claims debatable or wrong, the Court declines to issue a certificate of appealability. IV. CONCLUSION Because the defendant was lawfully arrested on May 12, 2008, the Court concludes that Ms. Shaner’s failure to file a motion to quash the indictment or a motion to suppress evidence resulted in no prejudice to defendant’s case. Thus, defendant’s Motion must be denied. A separate Order consistent with this Memorandum Opinion shall issue this date. . The government inconsistently identified the FBI Agent who spoke with the tipster on May 12, 2008. Compare Opp'n 16 (\"citizen contacted Agent DeJesus\"), with id. at 25 (\"citizen contacted that FBI agent”), and DeJesus Aff. ¶ 13, ECF No. 1-1 (\"citizen contacted the FBI agent”). Special Agent DeJesus testified that his affidavit was true and accurate" }, { "docid": "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": "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": "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": "10631315", "title": "", "text": "counsel. . Section § 848(q)(4)(B) provides that, \"[i]n any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation ... shall be entitled to the appointment of one or more attorneys....” 21 U.S.C. § 848(q)(4)(B), repealed by Terrorist Death Penalty Enhancement Act of 2005, Pub.L. No. 109-177, tit. II, subtit. B, § 222(c), 120 Stat. 192, 232 (2006). . Judge Greenberg dissented, stating that he would have dismissed the appeal. . Judge Greenberg again dissented from the denial of panel rehearing. Michael v. Horn, 414 F.3d 456, 2005 WL 1606069, at *1-8 (3d Cir. July 7, 2005) (Greenberg, J., dissenting). . Judge Greenberg concurred to emphasize that he viewed whatever had happened in the District Court respecting Michael's vacillations as \"beyond the scope of our certificate of appealability.” Michael, 144 Fed.Appx. at 264 (Greenberg, J., concurring). Judge Nygaard dissented because he believed that the June 2 order was correct and, to the extent it was ambiguous, could be supplemented. Id. at 264-65 (Nygaard, J., dissenting). . A COA may issue only upon \"a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a \"district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Where, as here, the District Court has rejected the claims on procedural grounds, the prisoner must establish “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. . It is also well settled that a defendant has a right to waive representation. See Faretta v. California, 422 U.S. 806, 834-36, 95 S.Ct." }, { "docid": "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": "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": "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": "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": "22276145", "title": "", "text": "the motion does not meet the requirements we outline today, the district court must deny it. If a petitioner wishes to appeal the denial of a Rule 60(b) motion aimed at a judgment denying habeas relief, he must obtain a certificate of appealability in order to do so. The dissent’s criticism that no Rule 60(b) motion could ever meet the standards set out for certificates of appealability in § 2253(c)(1) & (c)(2), which provides that they “may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right,” is obviously unfounded. See generally Dissenting Op. Part IV. Our disposition of two of the cases in front of us proves how unfounded it is. We conclude in Part III of this opinion that two of the three petitioners are entitled to a certificate of appealability, and we issue each of them one. We do so applying guidance the Supreme Court provided us in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), which dealt with certificate of ap-pealability applications to review procedurally based denials in habeas cases. That which is done is not impossible. Furthermore, a central premise of the dissent’s impossibility argument is that the decision of whether to issue a certificate of appealability must be confined to consideration of the debatability of a constitutional issue. It must be, the dissent reasons, because the certificate of appealability standard is whether “the applicant has made a substantial showing of the denial of a constitutional right.” See § 2253(c)(2). Appealing as it might otherwise be, that reasoning is at war with the Supreme Court’s holding in the Slack case. Construing and applying the identical statutory language, the Court in Slack concluded that in deciding whether to issue a certificate of appealability to permit an appeal from the denial of a habeas petition on procedural grounds, courts must consider the debatability of the procedural ruling, and no certificate may be issued if the petitioner fails to make a substantial showing that the procedural ruling was wrong. 529 U.S. at 484, 120 S.Ct." }, { "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": "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": "23518656", "title": "", "text": "addressed Mr. Adams’ contention that pursuant to Houston v. Lack, his second state petition was “filed” when he placed the petition in the mail. Adopting this argument would toll the federal statute of limitations long enough to make Mr. Adams’ federal habeas petition timely. We granted a certificate of appealability, vacated the district court’s order, and remanded for a determination of this issue. On remand, the district court held Houston v. Lack did not apply in this case, and again found Mr. Adams’ federal petition untimely. We granted a certificate of ap-pealability on this issue, and appointed counsel for Mr. Adams for the purposes of this appeal. DISCUSSION Because the question presented here is a legal one, our review is de novo. See Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir.1999), cert. denied, — U.S. —, 120 S.Ct. 944, 145 L.Ed.2d 820 (2000). As an initial matter, we must determine if we have jurisdiction over this appeal. Appellate review of the dismissal of a habeas petition is controlled by 28 U.S.C. § 2253, which requires the issuance of a certificate of appealability before an appeal can proceed in our court. See 28 U.S.C. § 2253(c)(1)(A). “A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As mentioned earlier, we granted a certificate of appealability on the issue of the timeliness of Mr. Adams’ federal petition. However, [w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a [certificate of appeal-ability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Therefore, the determination of whether a certificate of appealability should issue in this case must have “two components, one directed at" }, { "docid": "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": "5625772", "title": "", "text": "the time for filing their Answer until June 18, 2002. (D.I.11.) Re spondents filed their Answer on that date. (D.I.12.) Accordingly, Petitioner’s motion for a default judgment will be denied. F. Certificate of Appealability Finally, the Court must determine whether a certifícate of appealability should issue. See Third Circuit Local Appellate Rule 22.2. The Court may issue a certificate of appealability only if Petitioner “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 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 v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. For the reasons discussed above, the current Petition is barred by the one-year period of limitation. The Court is convinced that reasonable jurists would not debate otherwise. Petitioner, therefore, has failed to make a substantial showing of the denial of a constitutional right, and a certificate of appealability will not issue. III. CONCLUSION For the reasons stated, the Court will dismiss as untimely the Petition for Writ of Habeas Corpus filed by Petitioner Daniel M. Woods. The Court will also deny his motions for appointment of counsel and for a default judgment. The Court will not issue a certificate of appealability. An appropriate Order will be entered. . According to Respondents, these motions were: (1) filed on July 1, 1998, and denied on August 13, 1998; (2) filed on September 10, 2001, and September 25, 2001, both denied on September 25, 2001; and (3) filed on December 18, 2001, and denied on January" }, { "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": "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": "23550337", "title": "", "text": "JERRY E. SMITH, Circuit Judge: Paul Larson, a state prisoner, appeals the dismissal, for want of prosecution after failing to comply with a court order, of his pro se complaint. Finding no reversible error, we affirm. I. In a suit filed in October 1995, Larson asserted numerous claims, naming twenty-seven individual and institutional defendants. In March 1996, the district court granted Larson’s request to proceed in for-ma pauperis (“IFP”); In July 1997, citing Strickland v. Rankin County Correctional Facility, 105 F.3d 972 (5th Cir.1997), the magistrate judge sua sponte ordered Larson to file a new application to proceed IFP and a certification of his inmate trust account that complied with 28 U.S.C. § 1915(a), as amended by the newly-enacted Prison Litigation Reform Act (the “PLRA”), within thirty days or pay a filing fee of $120. The magistrate judge warned Larson that failure to comply might result in dismissal of the complaint for want of prosecution. Failing to heed the magistrate judge’s warning, Larson instead filed an “objection” and moved the district court to rescind the order. The district court denied the “objection.” Thirty days later, the magistrate judge recommended that the court dismiss the complaint without prejudice for failure to prosecute, on the ground that Larson had not complied with the order to provide the PLRA-required financial information. Larson filed an “objection/traverse” in which he argued that the PLRA did not require him to submit new financial information to maintain his IFP status, because he had initiated suit and had been granted IFP status before the PLRA’s effective date. Two months later, the district court dismissed the complaint without prejudice for want of prosecution, observing that the court had given Larson more than four months to comply with the order. II. Construing Larson’s brief liberally, as we must do with a pro se appellant, see Peña v. United States, 122 F.3d 3, 4 (5th Cir.1997), we explicate his argument as claiming that the district court abused its discretion in dismissing his complaint for want of prosecution. A district court sua sponte may dismiss an action for failure to prosecute or" } ]

[ { "docid": "23392434", "title": "", "text": "his claims against these two defendants. We affirm the dismissal of his claims against Lappin and Norwood because he did not assert that they were personally involved in the alleged constitutional violations. See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.2010) (\"[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”). . Although Walker used the forms associated with civil actions under 42 U.S.C. § 1983 to file his complaint, the district court properly construed his claims—asserted against federal officials—pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Macias v. Zenk, 495 F.3d 37, 40 (2d Cir.2007) (noting that district court liberally construed plaintiff's § 1983 lawsuit as a Bivens action). . Walker received permission to proceed in forma pauperis. Generally, a pro se litigant proceeding in forma pauperis is entitled to rely on the U.S. Marshals Service to effect service. See 28 U.S.C. § 1915(d) (\"The officers of the court shall issue and serve all process ... in [in forma pauperis] cases.”); Fed.R.Civ.P. 4(c)(3); Wright v. Lewis, 76 F.3d 57, 59 (2d Cir.1996) (a plaintiffs in forma pauperis status \"shift[s] the responsibility for serving the complaint from [the plaintiff] to the court”). The failure of the U.S. Marshals Service to properly effect service of process constitutes \"good cause” for failure to effect timely service, within the meaning of Federal Rule of Civil Procedure 4(m). See Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir.1986) (reversing dismissal where the U.S. Marshals Service failed to effect timely personal service through no fault of the plaintiff). Here, the Bureau of Prisons returned unsigned requests for waivers of service on behalf of Sepanek and Lappin, explaining that Sepanek was on \"extended medical leave” and Lappin had retired. Under these circumstances, it was error for the district court to dismiss Walker's claims against Sepanek and Lappin for failure to serve without considering whether Walker attempted to effect personal service on them through the U.S. Marshals Service and whether" }, { "docid": "12767238", "title": "", "text": "service for an appropriate period. We have held that district courts have discretion to grant extensions, and may do so even in the absence of “good cause.” See Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir.2007). In the Rule 4(m) context, a district court abuses its discretion when, among other things, it dismisses a complaint sua sponte for lack of service without first giving notice to the plaintiff and providing an opportunity for her to show good cause for the failure to effect timely service. See Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 115 (2d Cir.2010). In keeping with this requirement that the plaintiff show “good cause,” we generally will not reverse a district court’s dismissal of an action for lack of service unless the appellant can “advance some colorable excuse for neglect.” Zapata, 502 F.3d at 198. Meilleur’s primary argument on appeal is that she has demonstrated good cause for her failure timely to serve the Defendants because, (a) as a pro se litigant proceeding IFP, she was entitled to rely on the Marshals to effect service, and (b) the delay in the delivery of process to Strong was solely attributable to the Marshals. Although we agree that plaintiffs proceeding pro se and IFP are entitled to rely on the Marshals to effect service, we believe that Meilleur overstates the scope of that entitlement. Two opinions of this Court are particularly important to our discussion: Roman dette v. Weetabix Co., 807 F.2d 309 (2d Cir.1986), and Nagy v. Dwyer, 507 F.3d 161 (2d Cir.2007) (per curiam). In Romandette, we held that “an incarcerated pro se litigant proceeding in forma pauperis ... [is] entitled to rely on service by the U.S. Marshals.” 807 F.2d at 311 (citing Fed.R.Civ.P. 4(c)(2)(B)(i) (1986)). When, in Romandette, we sought to determine whether the district court’s dismissal of the plaintiffs action accorded with this entitlement, we looked to the manner in which the plaintiff invoked the entitlement and, relatedly, the court’s knowledge of that invocation at the time it ordered the dismissal. As we observed, the plaintiff" }, { "docid": "23625361", "title": "", "text": "the plaintiff was proceeding informa pauperis and the plaintiff repeatedly asked the United States Marshal to serve the United States), cert. denied, 516 U.S. 827, 116 S.Ct. 94, 133 L.Ed.2d 50 (1995); Byrd, 94 F.3d at 220 (providing that “the utter failure of the clerk and the Marshals Service to accomplish their respective duties to issue and serve process for plaintiff proceeding in forma pauperis constitutes a showing of good cause under [Federal Rule of Civil Procedure] 4”); Moore v. Jackson, 123 F.3d 1082, 1085-86 (8th Cir. 1997) (per curiam) (reversing the district court’s dismissal for failure to make timely service because “[w]aiver of service is the responsibility of the United States Marshal in these settings”). We have not yet addressed the application of Rule 4(m) in this unique factual context. However in Fowler v. Jones, we addressed “the role of the clerk of the court and the U.S. Marshal Service in serving complaints of parties proceeding in forma pauperis” against the backdrop of a district court’s denial of a motion for a continuance. 899 F.2d 1088, 1094 (11th Cir. 1990). There, the district court allowed Fowler, an incarcerated pro se plaintiff, to proceed informa pauperis in his 42 U.S.C. § 1983 action. Fowler named four defendants. At trial, when the district court indicated that there was only one defendant, Fowler objected. Defense counsel explained that only one defendant had been served. Fowler requested a continuance in order to serve the other defendants, but the district court denied the request. Fowler appealed. We reversed, finding that the district court abused its discretion in denying the continuance. Id. at 1096. In reviewing the denial of a requested continuance, we considered four factors, the last of which is relevant here: “the extent to which [Fowler] might have suffered harm as a result of the denial.” Id. at 1094 (citation omitted). Relying on Puett, Romandette, and Rodion, we held that “in forma pauperis litigants should be entitled to rely on the court officers and United States Marshals to effect proper service, and should not be penalized for failure to effect service where such" }, { "docid": "11129237", "title": "", "text": "PER CURIAM: Elijah Jackson, Jr., a state inmate proceeding pro se and in forma pauperis, filed the present amended 42 U.S.C. § 1983 complaint in the Northern District of Florida against the Florida Department of Corrections (“DOC”), Kenneth Tucker, Secretary of the DOC, and many of the DOC’s employees. He alleged six different claims, including, inter alia, that the DOC failed to implement voter rights reform, completely ban smoking in its pris ons, comply with state minimum health care standards, implement conjugal visitation, maintain proper prison conditions, and implement renewable green-energy alternatives. The district court adopted the magistrate’s recommendation to dismiss Jackson’s suit under 28 U.S.C. § 1915(e)(2)(B)(i) as malicious for Jackson’s abuse of the judicial process, because Jackson avowed in his prisoner complaint form that he never had a federal action dismissed prior to service when he, in fact, had at least one such prior action. On appeal, Jackson argues that: (1) it was error for the magistrate to deny at least two of his motions to appoint counsel; (2) it was error for the district court to adopt the magistrate’s report and, ultimately, dismiss his suit without prejudice; and (3) it was error for the district court to deny his post judgment motions to reopen the case, for rehearing, and for certificate of appealability. After thorough review, we affirm. We review a refusal to appoint counsel for abuse of discretion. Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir.1999). We review sanctions imposed pursuant to 28 U.S.C. § 1915 for abuse of discretion. Attwood v. Singletary, 105 F.3d 610, 612 (11th Cir.1997). However, where a party fails to file objections with the district court as to a magistrate’s ruling on a nondispositive matter, he is deemed to have waived the issue and is precluded from raising objection to the magistrate’s ruling on appeal. Farrow v. West, 320 F.3d 1235, 1248 n. 21 (11th Cir.2003); see also Fed.R.Civ.P. 72(a). While their pleadings are to be liberally construed, pro se plaintiffs are not excused from complying with procedural rules. McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980," }, { "docid": "18064483", "title": "", "text": "conduct. Id. Still, the Fourth Circuit recognized that it is “proper, within bounds, to hold clients to some measure of responsibility both for selecting competent attorneys and, more important, for supervising their conduct in representing them under ordinary principles of agency,” so long as this was “done with an eye to the realities of a client’s practical ability to supervise and control his attorney’s litigation conduct.” Id. at 35 (internal citations omitted). Before a case is dismissed as a sanction, often a judicial officer has given an explicit warning that such a sanction is contemplated, although it appears that no particular form of notice is required. In Ballard v. Carlson, the magistrate judge had ordered the pro se plaintiff to particularize his complaint, and the order itself warned that failure to comply would result in a recommendation that the action be dismissed. 882 F.2d 93, 94-95 (4th Cir.1989). The plaintiff missed the deadline. After the defendants moved for dismissal, the plaintiff moved for an extra 30 days to comply. The magistrate judge recommended dismissal and the district court dismissed, finding that the plaintiffs excuses for missing the deadline were without merit. The Fourth Circuit affirmed, noting the magistrate judge’s written warning as a “critical fact.” Id. at 95. The Fourth Circuit reasoned that after such a warning, the court had little choice but to dismiss the case when the plaintiff failed to comply, or it would have put the court’s credibility in doubt. Id. at 96. While a warning is useful, this case does not make an explicit written warning a requirement. Rather, the concern should be whether the parties share fault or have adequate notice. In determining whether a sanction of dismissal is appropriate, the Fourth Circuit has set out four factors that courts should consider: (1) the degree of personal responsibility of the plaintiff; (2) the amount of prejudice caused the defendant; (3) the existence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the existence of sanctions less drastic than dismissal. Doyle, 938 F.2d at 34 (internal quotations omitted). This is not" }, { "docid": "23392433", "title": "", "text": "bed with hats on or fully dressed in the winter months. PL’s Opp. at 11, Walker v. Schult, No. 11 Civ. 0287 (N.D.N.Y. Oct. 24, 2011), ECF No. 29. A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion. See, e.g., Gill v. Mooney, 824 F.2d 192, 195 (2d Cir.1987) (considering a pro se plaintiff's affidavit in opposition to a motion to dismiss in addition to those in the complaint). . At some point after he filed the complaint, Walker was transferred from FCI Ray Brook to another institution, Allenwood Medium Federal Correctional Institution. . On appeal, Walker explains that he named both Schult and Perdue in the complaint because the wardenship at FCI Ray Brook changed while he was incarcerated there. On February 13, 2011, Schult left FCI Ray Brook and Perdue became the new warden. . Although the complaint also named Bureau of Prisons director Harley Lappin and regional director J.L. Norwood, Walker does not appeal the dismissal of his claims against these two defendants. We affirm the dismissal of his claims against Lappin and Norwood because he did not assert that they were personally involved in the alleged constitutional violations. See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.2010) (\"[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”). . Although Walker used the forms associated with civil actions under 42 U.S.C. § 1983 to file his complaint, the district court properly construed his claims—asserted against federal officials—pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Macias v. Zenk, 495 F.3d 37, 40 (2d Cir.2007) (noting that district court liberally construed plaintiff's § 1983 lawsuit as a Bivens action). . Walker received permission to proceed in forma pauperis. Generally, a pro se litigant proceeding in forma pauperis is entitled to rely on the U.S. Marshals Service to effect service. See 28 U.S.C. § 1915(d) (\"The officers of the" }, { "docid": "22865700", "title": "", "text": "MINER, Circuit Judge: Anthony Romandette appeals pro se from an order of the United States District Court for the Southern District of New York (Brieant, J.) dismissing his diversity action for failure to effect service of the summons and complaint, Fed.R.Civ.P. 4, and for neglect to prosecute, Fed.R.Civ.P. 41(b). At the time the lawsuit was instituted — December 3, 1984 — and throughout most of the litigation, Romandette was incarcerated. Due to his incarceration, he was dependent upon prison library facilities to research his legal claims and, because of his in forma pauperis status, dependent upon United States Marshals to effectuate service of process. Because of the special circumstances constraining Romandette in the prosecution of his suit, we hold that the district court erred in dismissing for failure to effect service and abused its discretion in dismissing for neglect to prosecute. We therefore reverse. BACKGROUND Romandette filed this diversity action on December 3,1984, asserting products liability claims against Weetabix Company, Inc. (“Weetabix”), a Massachusetts corporation. He sought compensatory and punitive damages for physical injuries, including a broken tooth, and emotional harm allegedly attributable to ingesting a foreign substance while eating Weetabix Cornflakes at the Downstate Correctional Facility. After plaintiff was granted leave to proceed in forma pauperis, his pro se summons and complaint was forwarded to the United States Marshal for the Southern District of New York for service. On December 31, 1984, pursuant to Fed.R.Civ.P. 4(c)(2)(C)(ii), the Marshal’s Service mailed a copy of the summons and complaint by first class mail to Weetabix. On January 7, 1985, Weeta-bix’s vice-president and treasurer signed and returned the acknowledgment form. In its answer, Weetabix asserted Roman-dette’s failure to effect service in accordance with New York law as an affirmative defense. On April 25, 1985, Romandette moved, pursuant to Fed.R.Civ.P. 12(f), to strike Weetabix’s affirmative defense, arguing that Weetabix had been served properly on January 7 in accordance with the Federal Rules of Civil Procedure, when the acknowledgment form was signed. Weetabix countered that service had not been effected in accordance with Fed.R.Civ.P. 4(d)(3), pertaining to service upon a corporate defendant. Between April" }, { "docid": "22856255", "title": "", "text": "PER CURIAM: James Earl Brewster (“Brewster”), a Texas inmate proceeding pro se and in forma pauperis, appeals the district court’s dismissal of his § 1983 action. For the reasons stated below, we affirm. FACTS AND PROCEEDINGS In his complaint, Brewster alleges that, during a shake-down of his cell, prison officials verbally abused him and confiscated his spare glass eye, a bottle of wite-out, and a Georgetown Law Journal volume borrowed from a fellow inmate. The district judge asked Brewster to submit a more definite statement of his allegations, and he complied. The district court then dismissed Brewster’s complaint with prejudice as legally frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)®. The district court’s judgment did not address Brewster’s Eighth Amendment claim, however, and this court granted Brewster’s application to proceed in forma pauperis on appeal. STANDARD OF REVIEW We review a district court’s dismissal of an in forma pauperis complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)® for an abuse of discretion. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997). A claim may be dismissed as frivolous if it does not have an arguable basis in fact or law. Gonzales v. Wyatt, 157 F.3d 1016, 1019 (5th Cir.1998). DISCUSSION Brewster challenges both the procedure through which the district court dismissed his claims and the merits of the district court’s legal analysis. We dispense with Brewster’s procedural arguments first. Brewster contends that'the district judge improperly dismissed his claims before an answer was filed and without conducting a Spears hearing or allowing him to amend his complaint. He further objects that the district court failed to “provide appellant with a statement explaining the dismissal that facilitates intelligent appella[te] review,” and argues that the district court improperly imposed a heightened pleading standard by requiring him to submit a more definite statement. None of these arguments has merit. The district court may dismiss an in forma pauperis proceeding “before service of process or before the filing of the answer” as long as certain safeguards are met. Ali v. Higgs, 892 F.2d 438, 440 (5th Cir.1990). In reviewing such a dismissal, we consider, among" }, { "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": "22079386", "title": "", "text": "PER CURIAM: Gaile Pugh Gratton, substituted for her deceased husband, Kwame N. Gratton, appeals from dismissal of her husband’s complaint alleging employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and 42 U.S.C. § 1981. The district court dismissed Gratton’s case in September 1996, after Gratton failed to comply with the district court’s order to provide releases to the Employers authorizing the production of his medical records. Gratton moved for reconsideration five days later, but failed to appear for the hearing, and the district court denied the motion. Gratton then filed an affidavit asserting that he never received notice of the hearing and the district court, noting that there was a confusing and complex series of events, granted Gratton a second hearing in January 1997. At the hearing, the district court found that its orders had been ignored or responded to in a cavalier way by the plaintiff on at least four occasions, and explained that it was unwilling to place additional burdens on the defendants who were not at fault at all. The court thereafter denied Gratton’s motion for reconsideration, and instead, granted a motion to dismiss for discovery abuses previously filed by defendants. We affirm. On appeal, Gratton, an attorney proceeding pro se, argues only that the district court erroneously dismissed Gratton’s case because of his failure to provide medical releases to the defendants. Gratton claims that inadequate representation by his counsel renders dismissal too severe a sanction. In case of remand, Gratton requests assignment to a different judge. This Court reviews dismissals .under Fed.R.Civ.P. 41 and 37 for abuse of discretion. See Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985) (reviewing dismissal under Rule 41); Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir.1993) (reviewing dismissal under Rule 37). Rule 41(b) authorizes a district court to dismiss a complaint for failure to prosecute or failure to comply with a court order or the federal rules. See Fed.R.Civ.P. 41(b); Go-forth, 766 F.2d at 1535. Dismissal under Rule 41(b) is appropriate where there is a clear record of “willful” contempt and" }, { "docid": "14611449", "title": "", "text": "MEMORANDUM ORDER VINCENT L. BRODERICK, District Judge. I In this case brought by a prisoner pro se under 42 U.S.C. § 1983, plaintiff claims he has been subjected to cruel and unusual punishment by prison guards and that his Fourteenth Amendment rights have been violated as a result of being confined under administrative keeplock detention for an unreasonable length of time without a hearing. The complaint was served by United States Marshals since the pro se plaintiff is incarcerated and proceeding in forma pauperis. Fed. R.Civ.P. 4(c)(2). The defendant, County of Westchester , has moved to dismiss the claim on three grounds: lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2); insufficiency of service of process under Fed.R.Civ.P. 12(b)(5); and failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). Defendant’s motion to dismiss based on lack of personal jurisdiction and insufficiency of service of process is denied. Defendant’s motion to dismiss for failure to state a claim will be treated as a motion for summary judgment pursuant to Fed.R.Civ.P. 56 on which the parties are directed to make further submissions as outlined below. II The defendant’s applications based on lack of personal jurisdiction and insufficiency of service of process both rest on the absence of proper service as called for by N.Y.Civ. Prac. Law and Rules 311 and Fed.R.Civ.P. 4. Defendant argues that although the Westchester County Attorney’s Office received a copy of plaintiffs summons and complaint via first class mail as provided for in Fed. R.Civ.P. 4, plaintiff failed to comply with the provisions regarding waiver and notice which accompany service by mail under Fed. R.Civ.P. 4(d). When dealing with pro se parties, courts interpret the rules dealing with service of process liberally. See generally, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Romandette v. Weetabix, 807 F.2d 309 (2d Cir.1986); Grammenos v. Lemos, 457 F.2d 1067, 1070 (2d Cir. 1972). Where a party contesting service of process has received actual notice, service requirements under Fed.R.Civ.P. 4 are construed liberally. Romandette v. Weetabix, 807 F.2d 309, 310-11 (2d Cir.1986); Grammenos v." }, { "docid": "22161947", "title": "", "text": "days of filing is reviewed for an abuse of discretion. Puett v. Blandford, 912 F.2d 270, 273 (9th Cir.1990). In cases involving plaintiffs proceeding in forma pauperis, the United States Marshal, upon order of the court, is authorized to serve the summons and the complaint. See 28 U.S.C. § 1915(c); Boudette v. Barnett, 923 F.2d 754, 757 (9th Cir.1991). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint and ... should not be penalized by having his action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his duties_” Puett, 912 F.2d at 275. So long as the prisoner has furnished the information necessary to identify the defendant, the marshal’s failure to effect service “is automatically good cause within the meaning of Rule 4(j).” Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990) (internal quotations omitted). Here, Walker did not prove that he provided the marshal with sufficient information to serve Housewright or that he in fact requested that Housewright be served. The district court did not abuse its discretion in concluding that Walker failed to show cause. D Walker argues that the district court abused its discretion in failing to grant a writ of habeas corpus ad testificandum to allow Johnson to testify as a witness for Walker. Johnson was incarcerated in the Nevada State Prison in Jean, Nevada, located approximately 500 miles from where the district court sits. The district court declined to order the writ on recommendation from the magistrate judge because Walker refused to indicate to what Johnson would testify. Since the importance of Johnson’s presence could not be ascertained, the district court concluded that the inconvenience and expense of transporting him to the prison would outweigh any benefit he would provide. In any event, after the district court denied the motion, the district court granted summary judgment on the merits of each claim; the only issue left for trial was damages. There is no indication in the record that Johnson’s" }, { "docid": "22923506", "title": "", "text": "to ensure that the defendants would be served. The district court acknowledged his diligence in granting him 60 additional days in which to comply with Rule 4(j), but there is no evidence in the record that the court or the U.S. Marshal took the proper steps during this time to serve copies of the summons and complaint effectively. Puett obtained proof that the federal defendants were, indeed, at the address that he provided to the U.S. Marshal. He repeatedly requested that the defendants be personally served when mail service failed and even tried to follow the Rules of Civil Procedure by eventually requesting service upon the United States. If this court found that it was enough, pursuant to Local Rule 160-2(b), for the U.S. Marshal to effect only regular mail service on behalf of incarcerated pro se plaintiffs proceeding in forma pauperis, then Puett would be correct in stating that “all defendants have to do is not respond to the Marshals service and the case will be dropped.” Such a result was certainly not contemplated by the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 4(c)(2)(B)(i), Fed.R.Civ.P. 83. Therefore, we hold that the district court abused its discretion in dismissing Puett’s case because Puett had good cause for not showing proof of service within the 60 days that the judge had allotted him. We vacate the district court’s dismissal and remand this matter so that proper service may be effectuated through the U.S. Marshal. REVERSED and REMANDED. . See Bivens v. Six Unknown Named Agents of The Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). . Local Rule 160-2 provides in relevant part: All papers required under these Rules or the Federal Rules of Civil Procedure to be served shall be served in conformity with the Federal Rules of Civil Procedure. However, the United States Marshal for the District of Nevada will not serve civil process except in the following circumstances: (a) Service of process on behalf of the United States of America; (b) Service of process pursuant to a specific order of a judge" }, { "docid": "22161946", "title": "", "text": "jacket inflicted pain of a constitutional magnitude. Most important, he does not clearly indicate the clothing that he did have. We conclude that Walker has not raised a genuine issue of material fact that he was denied adequate clothing under the Eighth Amendment, and we affirm the grant of summary judgment in favor of the prison officials on this claim. C Walker argues that the district court improperly dismissed the claims against Housewright because Walker failed to serve process within 120 days of filing the complaint. Process was served on all defendants but Housewright by the United States Marshal. When service was not effectuated to House-wright within 120 days, the district court ordered Walker to show cause why House- wright should not be dismissed. Walker responded that he requested the marshal to serve Housewright along with the other defendants. Walker, however, presented no evidence other than his own statement in support of this assertion. The district court concluded that Walker had not shown cause, and dismissed the claim. Dismissal for failure to serve within 120 days of filing is reviewed for an abuse of discretion. Puett v. Blandford, 912 F.2d 270, 273 (9th Cir.1990). In cases involving plaintiffs proceeding in forma pauperis, the United States Marshal, upon order of the court, is authorized to serve the summons and the complaint. See 28 U.S.C. § 1915(c); Boudette v. Barnett, 923 F.2d 754, 757 (9th Cir.1991). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint and ... should not be penalized by having his action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform his duties_” Puett, 912 F.2d at 275. So long as the prisoner has furnished the information necessary to identify the defendant, the marshal’s failure to effect service “is automatically good cause within the meaning of Rule 4(j).” Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990) (internal quotations omitted). Here, Walker did not prove that he provided the marshal with sufficient information to" }, { "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": "22926048", "title": "", "text": "“unhygienic.” Because the complaint failed to allege that Johnson had disregarded a known risk, the district court properly dismissed the claim against Johnson. See Farrow, 320 F.3d at 1245. B. Failure to Serve McNealy Richardson argues that the district court erred in dismissing his claim under Rule 4(m) for the failure to timely serve McNealy. Richardson contends that, because he was a pro se prisoner-litigant proceeding IFP, the court-appointed process server was responsible for effecting service on McNealy. The sua sponte dismissal of a complaint for failure to serve under Rule 4(m) is reviewed for an abuse of discretion. Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286 (11th Cir.2009). Under this standard, we affirm “unless [we] find that the district court has made a clear error of judgment, or has applied the wrong legal standard.” Id. Under Rule 4(m), the district court “must dismiss the action without prejudice ... or order that service be made within a specific time” if the defendant has not been served within 120 days of the filing of the complaint. Fed.R.Civ.P. 4(m). The court must extend the time for service, however, if the plaintiff shows “good cause” for the failure. Id. When a court grants a litigant leave to proceed IFP, the officers of the court must “issue and serve all process.” 28 U.S.C. § 1915(d). “[T]he failure of the United States Marshal to effectuate service on behalf of an in forma pauperis plaintiff through no fault of that plaintiff constitutes ‘good cause’ for the plaintiffs failure to effect timely service within the meaning of Rule 4(m).” Rance, 583 F.3d at 1288. Thus, to determine whether the district court abused its discretion by failing to extend the time for service, we must determine whether Richardson was at fault for failing to provide an up-to-date address for McNealy. We have no binding authority stating whether a pro se prisoner-litigant proceeding IFP is at fault when he cannot provide the current address of a prison guard to the court-appointed service agent. In Ranee, we reversed a Rule 4(m) dismissal when “[n]othing in the record indicate[d]" }, { "docid": "23024488", "title": "", "text": "PER CURIAM. Federal inmate Dolandon Mack appeals following the district court’s adverse grant of summary judgment, and its denial of reconsideration, in his 42 U.S.C. § 1983 action. We affirm in part and reverse in part. In a verified amended complaint, Mack sought damages and declaratory and injunctive relief against the City of Little Rock (City), and employees of its police department, including officers Tim Dillon and Jana Rayburn, detective J.C. White, and Lieutenant Scott Timmons. He claimed a Fourth Amendment violation, and a conspiracy to conceal the violation. His claims arose from allegations concerning injuries he sustained when Dillon and Rayburn shot at him as he was fleeing after an armed robbery; and from the ensuing investigation of the incident. We find no abuse of discretion in the district court’s dismissal of Rayburn for insufficient service of process. See Fed.R.Civ.P. 4(m) (if defendant is not served within 120 days after filing of complaint court — on motion, or on its own after notice to plaintiff — must dismiss action without prejudice); Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286-88 & n. 3 (11th Cir.2009) (litigant proceeding in forma pauperis (IFP) is entitled to rely on service by federal marshals, where failure of marshals to effectuate service is through no fault of litigant, but IFP plaintiff may not remain silent and do nothing once he receives notice of failure to effectuate service); see also Edwards v. Edwards, 754 F.2d 298, 299 (8th Cir.1985) (per curiam) (no abuse of discretion where 170 days had passed between filing of complaint and dismissal, and plaintiff was warned of dismissal should he not serve defendants). We are troubled, however, by the court’s failure to address Mack’s subsequent challenge to the dismissal— especially given that Rayburn later provided an affidavit which reflected that she and Dillon were married, so that Rayburn’s whereabouts clearly were known to defendants. Nevertheless, Rule 4(m) dismissals are without prejudice, and on remand Mack can reassert his claim against Rayburn and attempt to serve her. As to the grant of summary judgment, this court reviews de novo, viewing the" }, { "docid": "23031008", "title": "", "text": "PER CURIAM: Curtis Ivan James, an Arizona state prisoner at the time these actions were filed, appeals pro se the district court’s dismissal of his complaint for failure to timely provide a trust-account statement pursuant to 28 U.S.C. § 1915(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, and we reverse and remand. In both appeals, the district court entered an order stating that James must file a trust-account statement in accordance with § 1915(a)(2) within thirty days to proceed in forma pauperis. James submitted the trust-account statement with a sworn statement that he had mailed the statement within the thirty-day period, but the district court received and filed it after the thirty-day period had run. We conclude that the rule for timely filing applicable to pro se prisoners articulated in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), applies to the filing of trust-account statements as required by § 1915(a)(2). See Faile v. Upjohn Co., 988 F.2d 985, 986-88 (9th Cir.1993). Because James submitted a sworn statement that he timely complied with the deadline imposed by the district court, “the district court must either accept that allegation as correct or make a factual finding to the contrary upon a sufficient evidentiary showing by the opposing party.” See id. at 988; see also Koch v. Ricketts, 68 F.3d 1191, 1194 (9th Cir.1995). Because the district court failed to make such a factual finding, we vacate the district court’s dismissal of these actions and remand for further proceedings. See Caldwell v. Amend, 30 F.3d 1199, 1203 (9th Cir.1994). VACATED and REMANDED. . Whether we construe the district court's dismissal as a dismissal for lack of prosecution, for failure to obey an order of the court, or of a complaint as frivolous, the proper standard of review is abuse of discretion. See Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir.1996) (failure to prosecute); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992) (failure to obey an order of the court); Trimble v. City of Santa Rosa, 49 F.3d 583," }, { "docid": "23625363", "title": "", "text": "failure is not due to fault on the litigant’s part.” Id. at 1095. We went on to distinguish Rodion and concluded that the district court abused its discretion in denying Fowler’s request for a continuance. We agree with the well-reasoned decisions of our sister circuits. Relying on Fowler, we hold that the failure of the United States Marshal to effectuate service on behalf of an in forma pauperis plaintiff through no fault of that plaintiff constitutes “good cause” for the plaintiffs failure to effect timely service within the meaning of Rule 4(m). Here, the district court allowed Ranee to proceed informa pauperis and, in accordance with § 1915, it specifically instructed the United States Marshal to make service. Our precedent allowed Ranee to rely on the Marshal to make service. See id. For reasons unknown to us, the United States Marshal did not do so. Nothing in the record indicates that Ranee shares in the Marshal’s fault for failure to effectuate service. Therefore, the district court abused its discretion by dismissing Ranee’s complaint without prejudice under Federal Rule of Civil Procedure 4(m) because the district court had directed the United States Marshal to serve the complaint, and the United States Marshal failed to do so through no fault of Ranee. IV. Upon review of the record on appeal, and after consideration of Ranee’s appellate brief, we vacate and remand for further proceedings. VACATED AND REMANDED. . On January 14, 2009, after the district court dismissed his case, Ranee filed \"Plaintiffs Motion to Reconsider the Case Closure and Motion to Reopen Closed Case,” in which he requested reconsideration based on medical illnesses. He did not mention that fact that the district court had ordered the United States Marshal to make service. Two days later, the district court denied that motion. Thereafter, Ranee filed a notice, advising the district court that it had ordered the United States Marshal to serve the defendants. The district court did not issue another order, and Ranee's notice of appeal followed. . While Romandette, Rochon, Puett, Setters, and Moore involved prisoner-plaintiffs, Dumaguin and Byrd did not. See" }, { "docid": "22923496", "title": "", "text": "not directing the U.S. Marshal to effect personal service on the defendants after mail service was unsuccessful. DISCUSSION Federal Rule of Civil Procedure 4(j) provides: If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.... Fed.R.Civ.P. 4(j). We review a district court’s dismissal of a complaint pursuant to Rule 4(j) for abuse of discretion. Townsel v. County of Contra Costa, Cal., 820 F.2d 319, 320 (9th Cir.1987); Wei v. Hawaii, 763 F.2d 370, 371 (9th Cir.1985). Under Federal Rule of Civil Procedure 4(c)(2)(B)(i) a party proceeding in for-ma pauperis is entitled to have the summons and complaint served by the U.S. Marshal. Romandette v. Weetabix Co., 807 F.2d 309, 310 n. 1 (2nd Cir.1986). Similarly, 28 U.S.C. § 1915(c) provides that in cases in which a court authorizes a plaintiff to proceed in forma pauperis the “officers of the court shall issue and serve all process.” In Davis v. Department of Corrections, 446 F.2d 644 (9th Cir.1971), we held that the district court’s dismissal of an action brought by a plaintiff proceeding in forma pauperis for failure to effect service was erroneous because under 28 U.S.C. § 1915(c) the officers of the court should have effected service. Id. at 645. Here, the U.S. Marshal did attempt to effect service, but as will be shown below, the attempts were deficient because they were not in accordance with the Federal Rules of Civil Procedure. We therefore must consider the extent to which an incarcerated pro se plaintiff proceeding in forma pauper-is may rely on the U.S. Marshal to effect proper service and when that reliance may constitute good cause for failing to comply with Rule 4®. At least two other circuits have considered this precise issue. See Rochon v. Dawson, 828 F.2d" } ]

[ { "docid": "15349932", "title": "", "text": "1951(a) (“in any way or degree obstructs, delays, or affects commerce or the movements of any article or commodity in commerce”). It is this jurisdictional element of the Hobbs Act that defeats Castleberry’s Lopez challenge. Unlike the statute involved in Lopez, the Hobbs Act contains a jurisdictional requirement that the extortion be connected in any way to interstate commerce. Because the Hobbs Act contains this jurisdictional element, we continue to hold that the Government only needs to establish a minimal effect on interstate commerce to support a violation of the Hobbs Act. We also note that while this Court has not specifically determined Lopez ’ impact on the interstate commerce element of the Hobbs Act, other circuit courts have addressed that issue. All of the courts that have addressed the issue have held that, despite Lopez, the Government still needs to show only a minimal effect on interstate commerce to support a conviction under the Hobbs Act. United States v. Atcheson, 94 F.3d 1237, 1242 (9th Cir.1996)(“Because the Hobbs Act is concerned solely with inter state, rather than intra state, activities, we conclude that Lopez ’s ‘ substantially affects’ test is not applicable.”), cert. denied,- U.S. -, 117 S.Ct. 1096, 137 L.Ed.2d 229 (1997); United States v. Bolton, 68 F.3d 396, 399 (10th Cir.1995)(“We therefore conclude the Hobbs Act represents a permissible exercise of the authority granted to Congress under the Commerce Clause, and that under Lopez, all the government need show is a de minimis effect on interstate commerce in order to support a conviction under the Act.”), cert. denied, - U.S. -, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996); United States v. Stillo, 57 F.3d 553, 558 n. 2 (7th Cir.)(“Nor did the Lopez decision undermine this Court’s precedents that minimal potential effect on commerce is all that need be proven to support a conviction.”), cert. denied, - U.S.-, 116 S.Ct. 383, 133 L.Ed.2d 306 (1995); see also United States v. Farmer, 73 F.3d 836, 843 (8th Cir.)(after Lopez decision,, robbery of local convenience store satisfies effect on interstate commerce),, cert. denied, — U.S. —, 116 S.Ct. 2570," } ]

[ { "docid": "7451524", "title": "", "text": "argues that applying section 2332a to his conduct would violate the Commerce Clause because Congress may not regulate conduct whose only effect on interstate commerce is purely theoretical. It would be proper to consider whether his actions actually affected interstate commerce, he argues, but it is inappropriate to base the exercise of jurisdiction on speculation about would have happened in an alternate scenario. Davila’s argument is unavailing. It is well established that the Commerce Clause permits Congress to criminalize activity that threatens to affect interstate commerce, even if that threat does not materialize in every case. “Congress can constitutionally reach inchoate offenses because these offenses pose a potential threat to interstate commerce; the existence of such a threat ties ‘the proscribed conduct to the area of federal concern delineated by the statute.’ ” United States v. Jannotti, 673 F.2d 578, 592 (3d Cir.1982) (quoting United States v. Feola, 420 U.S. 671, 695, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975)); accord United States v. Curdo, 759 F.2d 237, 241-42 (2d Cir.1985). We see no material distinction between Congress’s authority to criminalize the inchoate offenses of attempt or conspiracy, on one hand, and the perpetration of a hoax, on the other. All of these activities purport to pose a threat to interstate commerce, regardless of whether they are actually capable of being carried out. See United States v. Clemente, 22 F.3d 477, 480-81 (2d Cir.1994) (“ ‘Factual impossibility’ is no defense to the inchoate offense of conspiracy under the Hobbs Act.”). Davila argues that in light of United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Commerce Clause must be read as imposing a requirement of something beyond a minimal or theoretical effect on interstate commerce. His reliance on these cases is misplaced. Both Morrison and Lopez were concerned with statutes that lacked an explicit jurisdictional element. See Morrison, 529 U.S. at 613, 120 S.Ct. 1740 (“Like the Gun-Free School Zones Act at issue in Lopez, § 13981 contains no jurisdictional" }, { "docid": "5312433", "title": "", "text": "a statement. C. The district court erred in “double counting” by enhancing his offense level by 4 points for being a convicted felon in possession with a firearm and also giving him a separate sentence for possessing the same firearm. Each party has adopted the brief of the other if it pertains to defenses common to both. A. Hobbs Act Arias argues that the Hobbs Act is unconstitutional because it confers federal jurisdiction on activities that have less than a substantial effect on interstate commerce. The Hobbs Act, however, purports to punish conduct of a person who “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion.” 18 U.S.C. § 1951(a) (emphasis added). Arias argues that United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), determined that proscribed conduct that is purely intrastate in nature must have a “substantial,” not merely minimal, effect on interstate commerce. Alternatively, he argues, even if the court were to determine that a de minimis effect on interstate commerce were sufficient, that standard could not be met in this case because there was insufficient proof at trial that there was the required effect on interstate commerce, given the virtually undisputed evidence. This court has previously determined that Lopez did not alter the measure of evidence necessary to support the interstate commerce element of a Hobbs Act prosecution; therefore, we are not writing on a clean slate. In United States v. Castleberry, 116 F.3d 1384 (11th Cir.1997), the defendant was charged under the Hobbs Act for receiving money by “fixing” DUI charges and preventing them from being prosecuted. The defendant argued that, pursuant to Lopez, the government was required to show that his activity had a “substantial affect” on interstate commerce, instead of only a minimal affect required under pre-Lopez jurisprudence. Castleberry held that the jurisdictional element of the Hobbs-Act defeated the defendant’s Lopez challenge, and that the pre-Lopez “de minimis ” standard remained unchanged. The Court noted that it was joining all other courts that have" }, { "docid": "5312434", "title": "", "text": "that a de minimis effect on interstate commerce were sufficient, that standard could not be met in this case because there was insufficient proof at trial that there was the required effect on interstate commerce, given the virtually undisputed evidence. This court has previously determined that Lopez did not alter the measure of evidence necessary to support the interstate commerce element of a Hobbs Act prosecution; therefore, we are not writing on a clean slate. In United States v. Castleberry, 116 F.3d 1384 (11th Cir.1997), the defendant was charged under the Hobbs Act for receiving money by “fixing” DUI charges and preventing them from being prosecuted. The defendant argued that, pursuant to Lopez, the government was required to show that his activity had a “substantial affect” on interstate commerce, instead of only a minimal affect required under pre-Lopez jurisprudence. Castleberry held that the jurisdictional element of the Hobbs-Act defeated the defendant’s Lopez challenge, and that the pre-Lopez “de minimis ” standard remained unchanged. The Court noted that it was joining all other courts that have addressed the issue since Lopez, that the government still need only show a minimal effect on interstate commerce to support a conviction under the Hobbs Act. See Castleberry, 116 F.3d at 1387 (citing United States v. Atcheson, 94 F.3d 1237, 1242 (9th Cir.1996); United States v. Bolton, 68 F.3d 396, 399 (10th Cir.1995); United States v. Stillo, 57 F.3d 553, 558 n. 2 (7th Cir.), cert. denied, 516 U.S. 1137, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996); United States v. Farmer, 73 F.3d 836, 843 (8th Cir.), cert. denied, 518 U.S. 1028, 116 S.Ct. 2570, 135 L.Ed.2d 1086 (1996)). The Fifth Circuit has also addressed the question and has explained its position that if the Hobbs Act charge is based on purely local activity, the government need not prove that the individual defendant’s conduct substantially affected commerce; rather, it suffices that the government show a slight effect in each case, provided that the general conduct in the aggregate is of the general type which affects commerce substantially. United States v. Robinson, 119 F.3d 1205 (5th" }, { "docid": "14569228", "title": "", "text": "the former Fifth Circuit rejected any requirement that the impact on commerce be substantial, holding that extortion or threats of violence under the Act “need affect interstate commerce only in a minimal degree to constitute a violation.” Id. at 837; see also United States v. Alexander, 850 F.2d 1500, 1503 (11th Cir.1988) (The government’s jurisdictional burden under the Hobbs Act is “not great,” the Act speaks in broad language manifesting a congressional purpose to use all of its constitutional commerce power, and therefore, “the government need only show a minimal effect on interstate commerce to sustain jurisdiction under the Hobbs Act.”), cert. denied sub nom. Grider v. United States, 489 U.S. 1068, 109 S.Ct. 1346, 103 L.Ed.2d 814 (1989); United States v. Jackson, 748 F.2d 1535, 1537 (11th Cir.1984) (The effect on commerce “need only be minimal,” and a minimal effect may be established under a “depletion of assets theory.”); United States v. Nadaline, 471 F.2d 340, 343 (5th Cir.) (“The impact of extortion need affect interstate commerce only in a minimal degree.”), cert. denied, 411 U.S. 951, 93 S.Ct. 1924, 36 L.Ed.2d 414 (1973). This long line of case precedent has not been altered by the Supreme Court’s recent holding in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), that Congress had exceeded its power under the Commerce Clause in enacting the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A) (1988). In United States v. Castleberry, 116 F.3d 1384, 1387 (11th Cir.), cert. denied, — U.S. --, 118 S.Ct. 341, 139 L.Ed.2d 265 (1997), the Eleventh Circuit considered whether Lopez had any effect on the “ ‘the measure of evidence necessary to support the interstate commerce element of a Hobbs Act prosecution.’ ” Id. at 1386 (quoting United States v. Frost, 77 F.3d 1319, 1320 (11th Cir.1996), judgment vacated on other grounds, — U.S. -, 117 S.Ct. 1816, 137 L.Ed.2d 1025 (1997)). We held that it did not, and we distinguished Lopez, observing that the Hobbs Act contains an explicit jurisdictional element, see 18 U.S.C. § 1951(a), while the Gun-Free School" }, { "docid": "15349930", "title": "", "text": "held that the Act violated the Commerce Clause. Id. at 551-52, 115 S.Ct. at 1626. Prior to Lopez, this Court had held that the Government need only prove that extortionate activity has a minimal effect on interstate commerce to satisfy the Hobbs Act jurisdictional requirement. United States v. Alexander, 850 F.2d 1500, 1503 (11th Cir.1988); United States v. Jackson, 748 F.2d 1535, 1537 (11th Cir.1984). Castleberry contends the Supreme Court’s decision in Lopez alters the jurisdictional nexus, requiring the Government to prove a substantial effect on interstate commerce, and not simply a minimal effect. We disagree. Since Lopez was decided, this Court has not directly decided whether Lopez has changed “the measure of evidence necessary to support the interstate commerce element of a Hobbs Act prosecution.” See United States v. Frost, 77 F.3d 1319, 1320 (11th Cir.1996), judgment vacated on other grounds, - U.S.-, 117 S.Ct. 1816, 137 L.Ed.2d 1025 (1997). However, this Court has rejected similar Lopez challenges in other contexts. United States v. Jackson, 111 F.3d 101 (11th Cir.1997)(Drag-Free School Zones Act did not exceed congressional authority under the Commerce Clause); United States v. McAllister, 77 F.3d 387 (11th Cir.)(finding constitutional a statute which makes possession of a firearm by a felon a criminal offense), cert. denied, - U.S.-, 117 S.Ct. 262, 136 L.Ed.2d 187 (1996); Cheffer v. Reno, 55 F.3d 1517 (11th Cir.l995)(holding that Freedom of Access to Clinic Entrances Act of 1994 was within Congress’ Commerce Clause power). In McAllister, the defendant, relying on Lopez, argued that Congress in enacting 18 U.S.C. § 922(g)(1), which makes it unlawful for a felon to “possess in or affecting commerce, any firearm or ammunition,” exceeded its Commerce Clause power by regulating the mere possession of a gun. We rejected defendant’s Lopez ’ argument mainly because the language of § 922(g)(1) contained a jurisdictional element (“possess in or affecting commerce, any firearm or ammunition,”), which the statute in Lopez, 18 U.S.C. § 922(q), did not contain. McAllister, 77 F.3d at 390. Like the statute involved in the McAllister case, the Hobbs Act contains a jurisdictional element. See 18 U.S.C. §" }, { "docid": "7451521", "title": "", "text": "to produce sufficient evidence to satisfy this element. He also argues that because the statute seeks to regulate conduct with only a theoretical or imaginary effect on commerce, it exceeds Congress’s power under the Constitution’s Commerce Clause. 1. Whether the government presented sufficient evidence that commerce would have been affected Because the instant case involves a hoax anthrax mailing, the proper inquiry, as the district court recognized, is whether commerce would have been affected if the letter had actually contained anthrax. Davila contends that the government presented insufficient evidence on this issue. In his view,' the testimony from the postal employee and the FBI official regarding the likely impact on the mail and the use of the federal drug stockpile amounted to no more than speculation and fell short of demonstrating that commerce would actually have been affected. For statutes that contain a jurisdictional element — a category that includes section 2382a as well as the Hobbs Act, 18 U.S.C. § 1951 — evidence of even a de minimis effect on interstate commerce will satisfy that element. See United States v. Fabian, 312 F.3d 550, 554-55 (2d Cir.2002) (holding that because the Hobbs Act “re-quir[es] a particularized showing of federal jurisdiction,” the government need only prove a minimal effect on interstate commerce); United States v. Farrish, 122 F.3d 146, 149 (2d Cir.1997) (same); see also Slaughter, 116 F.Supp.2d at 691 (“Because [18 U.S.C. § 2332a] includes such a jurisdictional element, the government need only show a minimal effect on interstate commerce.”). Applying this standard, we are satisfied that the evidence in this case was sufficient to satisfy the jurisdictional element. The postal employee’s testimony, which was based on experience from an actual anthrax mailing, established that a postal facility would be shut down, requiring interstate mail to be delayed and rerouted. The FBI witness testified that drugs would have to be transported to Connecticut using trucks traveling on the interstate highway system. From this testimony, a reasonable jury could find at least a minimal effect on interstate commerce. Davila argues that this case is comparable to Slaughter, an anthrax hoax" }, { "docid": "23260995", "title": "", "text": "storage facility to receive mail, including unauthorized credit cards and account statements. Given these facts, a reasonable factfinder could infer that Klopf used one of the fraudulent identification documents to verify his identity when applying for the storage facility, and, in turn, used that facility to receive mail in connection with a credit-card scheme that had a significant effect on interstate commerce. Because it would be reasonable for a factfinder to make this inference, sufficient evidence supports Klopf s conviction for Count I as to the second element of proof. See Perez-Tosta, 36 F.3d at 1557. Under 18 U.S.C. § 1028(c)(3)(A), “[t]he circumstance referred to in subsection (a) of this section is that ... the production, transfer, possession, or use prohibited by this section is in or affects interstate or foreign commerce.” Id. In reviewing the legislative history for this statute, the Fourth Circuit noted “that Congress intended ‘to provide broad Federal jurisdiction over violations of this section’ by requiring that only a ‘minimal nexus with interstate or foreign commerce be shown.’ ” United States v. Pearce, 65 F.3d 22, 25 (4th Cir.1995) (quoting H.R.Rep. No. 802, 97th Cong., 2d Sess. 1 (1982), reprinted in, 1982 U.S.C.C.A.N. 3519, 3532-33). By requiring the government to prove a minimal connection to interstate commerce in a § 1028(a) case, this statute, in contrast to those in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), which did not contain jurisdictional requirements, contains a sufficient jurisdictional requirement to overcome a Commerce Clause challenge. In the context of a Hobbs Act, 18 U.S.C. § 1951, prosecution, our court has held that, because of the interstate commerce jurisdictional element, “the Government only needs to establish a minimal effect on interstate commerce to support a violation.” United States v. Castleberry, 116 F.3d 1384, 1387 (11th Cir.1997) (collecting cases from other circuits adopting the minimal-effect standard for interstate commerce under the Hobbs Act). Relying on the legislative history of § 1028, the Fourth Circuit held that, to prove" }, { "docid": "23260996", "title": "", "text": "v. Pearce, 65 F.3d 22, 25 (4th Cir.1995) (quoting H.R.Rep. No. 802, 97th Cong., 2d Sess. 1 (1982), reprinted in, 1982 U.S.C.C.A.N. 3519, 3532-33). By requiring the government to prove a minimal connection to interstate commerce in a § 1028(a) case, this statute, in contrast to those in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), which did not contain jurisdictional requirements, contains a sufficient jurisdictional requirement to overcome a Commerce Clause challenge. In the context of a Hobbs Act, 18 U.S.C. § 1951, prosecution, our court has held that, because of the interstate commerce jurisdictional element, “the Government only needs to establish a minimal effect on interstate commerce to support a violation.” United States v. Castleberry, 116 F.3d 1384, 1387 (11th Cir.1997) (collecting cases from other circuits adopting the minimal-effect standard for interstate commerce under the Hobbs Act). Relying on the legislative history of § 1028, the Fourth Circuit held that, to prove a violation under § 1028(a), the government need demonstrate only a “minimal nexus” between the fraudulent identification and interstate or foreign commerce. Pearce, 65 F.3d at 24-25. In Pearce, the Fourth Circuit cited with approval the Sixth Circuit’s upholding a jury instruction requiring only “ ‘an intent to do acts which, if complete, would have affected interstate commerce.’ ” Pearce, 65 F.3d at 25 (quoting United States v. Gros, 824 F.2d 1487, 1494-95 (6th Cir.1987)). The Eighth Circuit also has given § 1028(c)(3)(A) an expansive interpretation by noting that “the statute presents two options: possession may be ‘in’ interstate commerce or it may ‘affect’ interstate commerce.” United States v. Jackson, 155 F.3d 942, 947 (8th Cir.1998). The Jackson court concluded that the government demonstrates that possession of unlawful identity documents, such as stolen driver’s licenses, affected interstate commerce by proof that possession “was integral to [defendant’s] scheme to defraud businesses and banks operating in interstate commerce.” Id. Therefore, fraudulently inducing a bank to issue a credit card through fraudulent identification documentation would be sufficient evidence" }, { "docid": "7451522", "title": "", "text": "that element. See United States v. Fabian, 312 F.3d 550, 554-55 (2d Cir.2002) (holding that because the Hobbs Act “re-quir[es] a particularized showing of federal jurisdiction,” the government need only prove a minimal effect on interstate commerce); United States v. Farrish, 122 F.3d 146, 149 (2d Cir.1997) (same); see also Slaughter, 116 F.Supp.2d at 691 (“Because [18 U.S.C. § 2332a] includes such a jurisdictional element, the government need only show a minimal effect on interstate commerce.”). Applying this standard, we are satisfied that the evidence in this case was sufficient to satisfy the jurisdictional element. The postal employee’s testimony, which was based on experience from an actual anthrax mailing, established that a postal facility would be shut down, requiring interstate mail to be delayed and rerouted. The FBI witness testified that drugs would have to be transported to Connecticut using trucks traveling on the interstate highway system. From this testimony, a reasonable jury could find at least a minimal effect on interstate commerce. Davila argues that this case is comparable to Slaughter, an anthrax hoax case in which the district court found that the “limited set of facts” presented by the government provided insufficient evidence of an impact on interstate commerce. Id. at 693. The evidence in this case is considerably more developed than what the government presented in Slaughter, however. There, the government established only that if the defendant had actually sent anthrax, military doctors and scientists would have traveled from Maryland to Virginia to assist and investigate; the court noted that there was no evidence “that the military personnel would have had to bring or use supplies that had traveled in interstate commerce, or that they would have traveled in commercial carriers, lodged in hotels, or eaten at restaurants that engage in interstate commerce.” Id. Here, by contrast, the government relied not on testimony about a military response, but rather on evidence of direct effects on interstate mail and interstate trucking, two areas that are inextricably connected to commerce. 2. Whether the Commerce Clause permits Congress to regulate conduct with only a theoretical effect on commerce Davila also" }, { "docid": "7451525", "title": "", "text": "between Congress’s authority to criminalize the inchoate offenses of attempt or conspiracy, on one hand, and the perpetration of a hoax, on the other. All of these activities purport to pose a threat to interstate commerce, regardless of whether they are actually capable of being carried out. See United States v. Clemente, 22 F.3d 477, 480-81 (2d Cir.1994) (“ ‘Factual impossibility’ is no defense to the inchoate offense of conspiracy under the Hobbs Act.”). Davila argues that in light of United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Commerce Clause must be read as imposing a requirement of something beyond a minimal or theoretical effect on interstate commerce. His reliance on these cases is misplaced. Both Morrison and Lopez were concerned with statutes that lacked an explicit jurisdictional element. See Morrison, 529 U.S. at 613, 120 S.Ct. 1740 (“Like the Gun-Free School Zones Act at issue in Lopez, § 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ power to regulate interstate commerce.”). We have repeatedly recognized that neither Morrison nor Lopez affects the government’s burden with respect to statutes that contain a jurisdictional element. See, e.g., Fabian, 312 F.3d at 555 (“As the Hobbs Act requires a particularized jurisdictional showing, we find Morrison does not affect our requirement that the Government need only show a minimal effect on interstate commerce to support Hobbs Act jurisdiction.”) (internal quotation marks omitted); Farrish, 122 F.3d at 149 (finding that Lopez did not affect the Hobbs Act analysis); United States v. Leslie, 103 F.3d 1093, 1100 (2d Cir.1997) (concluding that “Lopez did not elevate the government’s burden under the money laundering statute”). Because section 2332a, like the Hobbs Act and the money laundering statute, contains a jurisdictional element, Morrison and Lopez do not require the government to make a heightened showing of an effect on interstate commerce. D. Whether the indictment sufficiently alleged that Davila’s letter was addressed to a “person,” as required" }, { "docid": "23487130", "title": "", "text": "fulfill the jurisdictional element of the Hobbs Act. United States v. Panaro, 241 F.3d 1104 (9th Cir.2001); United States v. Atcheson, 94 F.3d 1237, 1242 (9th Cir.1996) (concluding that United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), did not require proof of a “substantial effect” on interstate commerce in Hobbs Act prosecution, but that the continued use of “de minimis” standard was proper); cf. United States v. Frega, 179 F.3d 793, 800-01 (9th Cir.1999) (holding RICO constitutional in face of Commerce Clause challenge and Lopez’s “substantial effects” test inapplicable as RICO regulates economic activity). Rodriguez asserts that the government could not make this de minimis showing, because the intended robbery victims were “non-existent” individuals and there was no evidence that those non-existent individuals were engaged in interstate commerce. Rodriguez asserted this claim before the district court in his motion to arrest judgment. We review the district court’s denial of that motion for an abuse of discretion. United States v. Baker, 63 F.3d 1478, 1499 (9th Cir.1995). Because Rodriguez argues that the government failed to present sufficient evidence of a required element of the charged offense, we must construe the evidence in the manner most favorable to the government, drawing all inferences that may reasonably be drawn against the defendant. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Rodriguez asserts that the government’s evidence failed to establish federal jurisdiction because the government was required to satisfy the jurisdictional test put forth in United States v. Lynch, 282 F.3d 1049 (9th Cir.2002). In Lynch, we established that, for purposes of determining what constitutes a de minimis effect on interstate commerce, the court must distinguish between the robbery of an individual and the robbery of a business. Id. at 1051. Specifically, we held that when the government brings charges for robbery under the Hobbs Act, and the target of the robbery was an individual, the government must show that the defendant “(1) stole from a person ‘directly and customarily engaged in interstate commerce;’ (2) created a likelihood that the assets" }, { "docid": "436183", "title": "", "text": "under § 844(i)’s second prong is consistent with the holdings of several other circuits. See, e.g., United States v. Tocco, 135 F.3d 116, 123-24 (2d Cir.) (rejecting the contention that Lopez requires the government to show a substantial effect on interstate commerce for purposes of § 844(i)), cert. denied, - U.S. -, 118 S.Ct. 1581, 140 L.Ed.2d 795 (1998); United States v. Hicks, 106 F.3d 187, 190 (7th Cir.) (holding that § 844(i) requires the government only to \"establish a minimal connection between the property at issue and some aspect of interstate commerce____”), cert. denied, U.S. , 117 S.Ct. 2425, 138 L.Ed.2d 188 (1997); United States v. Melina, 101 F.3d 567, 573 (8th Cir.1996) (rejecting the contention that the government must show a \"substantial effect” to satisfy the interstate commerce requirement under § 844(D). This conclusion also is consistent with decisions of this court construing other statutes with the same relevant language as § 844(i)-namely, the \"activity affecting interstate commerce\" language. See United States v. Castlebery, 116 F.3d 1384, 1386-87 (11th Cir.1997) (holding after Lopez that the interstate nexus element of the Hobbs Act still requires the government to show only a minimal connection to interstate commerce); United States v. McAllister, 77 F.3d 387, 390 (11th Cir.) (holding the same regarding § 922(g)(1)), cert. denied, - U.S.-, 117 S.Ct. 262, 136 L.Ed.2d 187 (1996). . Appellant Viseóme never challenged the constitutionality of § 2332a(a)(2) in the district court. . In its current form, § 2332a(a)(2) states as follows: § 2332a. Use of weapons of mass destruction (a) Offense against a national of the United States or within the United States.-A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction ... (2) against any person within the United States, and the results of such use affect interstate or foreign commerce or, in the case of a threat, attempt, or conspiracy, would have affected interstate or foreign commerce shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term" }, { "docid": "14569229", "title": "", "text": "411 U.S. 951, 93 S.Ct. 1924, 36 L.Ed.2d 414 (1973). This long line of case precedent has not been altered by the Supreme Court’s recent holding in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), that Congress had exceeded its power under the Commerce Clause in enacting the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A) (1988). In United States v. Castleberry, 116 F.3d 1384, 1387 (11th Cir.), cert. denied, — U.S. --, 118 S.Ct. 341, 139 L.Ed.2d 265 (1997), the Eleventh Circuit considered whether Lopez had any effect on the “ ‘the measure of evidence necessary to support the interstate commerce element of a Hobbs Act prosecution.’ ” Id. at 1386 (quoting United States v. Frost, 77 F.3d 1319, 1320 (11th Cir.1996), judgment vacated on other grounds, — U.S. -, 117 S.Ct. 1816, 137 L.Ed.2d 1025 (1997)). We held that it did not, and we distinguished Lopez, observing that the Hobbs Act contains an explicit jurisdictional element, see 18 U.S.C. § 1951(a), while the Gun-Free School Zones Act did not. Castleberry, 116 F.3d at 1387. This Court expressly continued to hold that “the Government only needs to establish a minimal effect on interstate commerce to support a violation of the Hobbs Act.” Id. Since Lopez, our sister circuits have uniformly held that the government still need establish only a minimal effect on interstate commerce to support a conviction under the Act. See United States v. Farrish, 122 F.3d 146, 148 (2d Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1056, 140 L.Ed.2d 118 (1998); United States v. Robinson, 119 F.3d 1205, 1208 (5th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1104, 140 L.Ed.2d 158 (1998); United States v. Harrington, 108 F.3d 1460, 1465 (D.C.Cir.1997); United States v. Atcheson, 94 F.3d 1237, 1242 (9th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1096, 137 L.Ed.2d 229 (1997); United States v. Farmer, 73 F.3d 836, 843 (8th Cir.), cert. denied, 518 U.S. 1028, 116 S.Ct. 2570, 135 L.Ed.2d 1086 (1996); United States v. Bolton, 68 F.3d 396, 399 (10th Cir.1995), cert. denied," }, { "docid": "14521441", "title": "", "text": "this Court should reverse his convictions and overrule its prior Hobbs Act jurisprudence in light of the Supreme Court’s decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), as it applies to “isolated robberies not committed as part of racketeering acts” (Appellant’s Br. at 7) or that this Court should “remand for a new trial” so that the jury can be instructed it must find the activity “substantially impacted” interstate commerce (id. at 16). Morris’s argument relies on the proposition that to be constitutionally applied to non-racketeering robberies, the Hobbs Act requires a demonstration that a defendant’s conduct more than minimally impacted interstate commerce. We review this challenge to the constitutionality of the Hobbs Act de novo. Pearson, 203 F.3d at 1267. In United States v. Bolton, 68 F.3d 396 (10th Cir.1995), we examined our prior Hobbs Act jurisprudence in light of the Supreme Court’s decision in Lopez. We concluded that Lopez did not ... require the government to show that individual instances of the regulated activity substantially affect commerce to pass constitutional muster under the Commerce Clause. Rather, the Court recognized that if a statute regulates an activity which, through repetition, in aggregate has a substantial affect [sic] on interstate commerce, “the de minimis character of individual instances arising under that statute is of no consequence.” Bolton, 68 F.3d at 399 (quoting Lopez, 514 U.S. at 558, 115 S.Ct. 1624) (further citation omitted). We then concluded that the “Hobbs Act regulates activities which in aggregate have a substantial effect on interstate commerce,” the statute “represents a permissible exercise of the authority granted to Congress under the Commerce Clause, and ... under Lopez, all the government need show is a de minim-is effect on interstate commerce in order to support a conviction under the Act.” Bolton, 68 F.3d at 399. Citing the government’s production of evidence at trial establishing that defendant’s robberies affected interstate commerce, we upheld defendant’s Hobbs Act conviction. Id. at 399-400. We have also upheld the Hobbs Act in light of the Supreme Court’s more recent Commerce Clause cases, United" }, { "docid": "18059035", "title": "", "text": "to invoke its Ml authority under the Commerce Clause.” Jones v. United States, 529 U.S. 848, 854, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). Where a statute contains “an express jurisdictional nexus to interstate commerce,” violations that have merely a de minimis effect on interstate commerce satisfy the jurisdictional requirement. United States v. Dobbs, 449 F.3d 904, 912 (8th Cir.2006). We have not yet had an opportunity to determine what activities sufficiently affect interstate commerce to be actionable under section 2332a. However, we have ample caselaw touching on what is required to show an activity affects commerce under statutes similar to section 2332a that also contain the “affecting interstate commerce” language as the jurisdictional hook. Our Hobbs Act jurisprudence is helpM, and other circuits have relied on Hobbs Act cases in determining what activities sufficiently affect interstate commerce so as to be covered by section 2332a. See, e.g., United States v. Davila, 461 F.3d 298, 306 (2d Cir.2006) (applying Hobbs Act jurisdiction theories to an 18 U.S.C. § 2332a case). The Hobbs Act, 18 U.S.C. § 1951, is the federal robbery statute. If a business is robbed, the Government can meet the Hobbs Act’s jurisdictional requirement by proving the robbery depleted the assets of a business operating in interstate commerce. See United States v. McCraney, 612 F.3d 1057, 1065 (8th Cir.2010), cert. denied, Williams v. United States, — U.S. —, 131 S.Ct. 1784, 179 L.Ed.2d 656 (2011); United States v. Williams, 308 F.3d 833, 838-39 (8th Cir.2002). Under the Hobbs Act, a robbery affects commerce where it results in a business temporarily closing to recover from the robbery. See United States v. Quigley, 53 F.3d 909, 910 (8th Cir.1995) (citing United States v. Davis, 30 F.3d 613, 614-15 (5th Cir.1994)). Similarly, under section 2332a, a violation of the statute that results in a depletion of assets — including lost business opportunities — of a business operating in interstate commerce satisfies the “affecting commerce” language of the statute warranting federal jurisdiction. The Government presented evidence at trial that Mann’s violation of section 2332a resulted in significant losses to Dr. Pierce’s medical" }, { "docid": "15349929", "title": "", "text": "559, 115 S.Ct. at 1629-30. After concluding that the Gun-Free School Zones Act only involved the third category, Id. at 559-60, 115 S.Ct. at 1630, the Court was uncertain whether an activity Congress intended to regulate must simply affect interstate commerce or substantially affect interstate commerce. Id. “The Court concluded that the proper test for a statute which ‘neither regulates a commercial activity nor contains a [jurisdictional] requirement that the [regulated activity] be connected in any way to interstate commerce’ was whether the regulated activity ‘substantially affects’ interstate commerce.” United States v. Atcheson, 94 F.3d 1237, 1241 (9th Cir.l996)(quoting Lopez, 514 U.S. at 551-52, 559-60, 115 S.Ct. at 1626, 1630), cert. denied, - U.S. -, 117 S.Ct. 1096, 137 L.Ed.2d 229 (1997) . Applying these principles to the Gun-Free School Zones Act, the Court concluded that “[t]he possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.” Id. at 567, 115 S.Ct. at 1634. Accordingly, the Court held that the Act violated the Commerce Clause. Id. at 551-52, 115 S.Ct. at 1626. Prior to Lopez, this Court had held that the Government need only prove that extortionate activity has a minimal effect on interstate commerce to satisfy the Hobbs Act jurisdictional requirement. United States v. Alexander, 850 F.2d 1500, 1503 (11th Cir.1988); United States v. Jackson, 748 F.2d 1535, 1537 (11th Cir.1984). Castleberry contends the Supreme Court’s decision in Lopez alters the jurisdictional nexus, requiring the Government to prove a substantial effect on interstate commerce, and not simply a minimal effect. We disagree. Since Lopez was decided, this Court has not directly decided whether Lopez has changed “the measure of evidence necessary to support the interstate commerce element of a Hobbs Act prosecution.” See United States v. Frost, 77 F.3d 1319, 1320 (11th Cir.1996), judgment vacated on other grounds, - U.S.-, 117 S.Ct. 1816, 137 L.Ed.2d 1025 (1997). However, this Court has rejected similar Lopez challenges in other contexts. United States v. Jackson, 111 F.3d 101 (11th Cir.1997)(Drag-Free School Zones Act did" }, { "docid": "3509355", "title": "", "text": "simply by showing that the offense had a minimal effect on commerce, and in so doing have rejected any requirement that the impact on commerce be substantial. See, e.g., United States v. Le, 256 F.3d 1229 (11th Cir.2001) (“In the case of a substantive Hobbs Act offense, the ‘impact on commerce does not need to be substantial; all that is required is minimal impact.’ ”) (quoting United States v. Kaplan, 171 F.3d 1351, 1354 (11th Cir.1999) (en banc)); Rodriguez, 218 F.3d at 1244; Guerra, 164 F.3d at 1360; United States v. Paredes, 139 F.3d 840, 844 (11th Cir.1998); Castleberry, 116 F.3d at 1387; United States v. Jackson, 748 F.2d 1535, 1537 (11th Cir.1984); United States v. Hyde, 448 F.2d 815, 837 (5th Cir.1971). We have also repeatedly rejected the argument that the minimal effect standard was altered by the Supreme Court’s decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In Castleberry, for example, we considered whether Lopez — a case addressing the constitutionality of the Gun-Free School Zones Act, 18 U.S.C. § 922(g) — had any effect on the “the measure of evidence necessary to support the interstate commerce element of a Hobbs Act prosecution.” 116 F.3d at 1386 (internal quotation and citation omitted). We held that it did not and distinguished Lopez, observing that the Hobbs Act contains an explicit jurisdictional element, see 18 U.S.C. § 1951(a), while the Gun-Free School Zones Act did not. 116 F.3d at 1387. This Court expressly continued to hold that “the Government only needs to establish a minimal effect on interstate commerce to support a violation of the Hobbs Act.” Id. Subsequent decisions from this Court have reiterated our decision in Castleberry and confirmed, again and again, that even after Lopez a conviction for Hobbs Act robbery requires proof of a minimal, not substantial, effect on commerce. See Rodriguez, 218 F.3d at 1244-45; Guerra, 164 F.3d at 1360; Paredes, 139 F.3d at 844. Gray asserts that a more recent Supreme Court decision, United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658" }, { "docid": "7451526", "title": "", "text": "element establishing that the federal cause of action is in pursuance of Congress’ power to regulate interstate commerce.”). We have repeatedly recognized that neither Morrison nor Lopez affects the government’s burden with respect to statutes that contain a jurisdictional element. See, e.g., Fabian, 312 F.3d at 555 (“As the Hobbs Act requires a particularized jurisdictional showing, we find Morrison does not affect our requirement that the Government need only show a minimal effect on interstate commerce to support Hobbs Act jurisdiction.”) (internal quotation marks omitted); Farrish, 122 F.3d at 149 (finding that Lopez did not affect the Hobbs Act analysis); United States v. Leslie, 103 F.3d 1093, 1100 (2d Cir.1997) (concluding that “Lopez did not elevate the government’s burden under the money laundering statute”). Because section 2332a, like the Hobbs Act and the money laundering statute, contains a jurisdictional element, Morrison and Lopez do not require the government to make a heightened showing of an effect on interstate commerce. D. Whether the indictment sufficiently alleged that Davila’s letter was addressed to a “person,” as required by section 876(c) Finally, Davila argues that the indictment failed to allege that his letter was addressed to a person, as required by section 876(c). Because he failed to raise this argument below, we consider only whether this constituted plain error. See United States v. Thomas, 274 F.3d 655, 666 (2d Cir.2001) (en banc) (holding that plain error review applies to a challenge to an indictment that is raised for the first time on appeal). To demonstrate plain error, a defendant must show “(1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Snype, 441 F.3d 119, 138 (2d Cir.2006). If all three of these conditions are met, we may exercise our discretion to notice a forfeited error, but only if “(4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks omitted). Section 876(c) prohibits mailing “any communication ... addressed to any other person and containing ... any threat to injure the person of the addressee or of another[.]” 18 U.S.C. § 876(c)" }, { "docid": "11262475", "title": "", "text": "requirement of showing an effect on commerce involves only a minimal burden of proving a connection to interstate commerce, and is satisfied by conduct that affects commerce “‘in any way or degree.’ ” See id. at 187-88 (quoting 18 U.S.C. § 1951(a)); see also United States v. Arena, 180 F.3d 380, 389-90 (2d Cir.1999). The requirement “may be satisfied by a showing of a very slight effect on interstate commerce. Even a potential or subtle effect on commerce will suffice.” See United States v. Angelilli, 660 F.2d 23, 35 (2d Cir.1981) (internal citations omitted); see also Jund v. Town of Hempstead, 941 F.2d 1271, 1285 (2d Cir.1991) (“[A]ny interference with or effect upon interstate commerce, whether slight, subtle, or even potential ... is sufficient to uphold a prosecution under the Hobbs Act.”). Contrary to Jamison’s assertion, we have repeatedly held that the Supreme Court’s decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), to the effect that Congress exceeded its Commerce Clause powers in establishing gun-free school zones in 18 U.S.C. § 922(q)(l)(A), does not'raise the de minimis threshold for satisfying the jurisdictional element of the Hobbs Act. See Arena, 180 F.3d at 390; United States v. Farrish, 122 F.3d 146, 148 (2d Cir.1997) (“We now expressly hold that Lopez did not raise the jurisdictional hurdle for bringing a Hobbs Act prosecution.”). Jamison makes two arguments supporting his contention that the government failed to show the necessary effect on commerce. First, he contends the government failed to demonstrate that the robbery, had it been successful, would have affected interstate commerce, as the evidence did not allow the inference that Porter intended to use the money in his possession to purchase goods in interstate commerce. Second, Jamison contends the district court erred in instructing the jury that a minimal effect on interstate commerce would suffice. He argues that where the robbery victim is a private individual, rather than a business, the robbery is less likely to affect commerce, and the government must therefore show a “substantial” effect, rather than a minimal effect. See United" }, { "docid": "18059034", "title": "", "text": "a weapon of mass destruction, the Government was required to prove: (1) that Mann used or conspired to use a weapon of mass destruction without lawful authority, (2) that he did so against a person or property within the United States, and (3) that the offense, or the results of the offense, affected interstate commerce. 18 U.S.C. § 2332a(a)(2)(D). Because one of the Government’s theories was that Mann conspired with another to commit the act, the Government also had to prove (1) an agreement existed between two or more people to use a weapon of mass destruction, (2) Mann knowingly and intentionally joined the agreement, and (3) Mann was aware of the agreement’s purpose. See United States v. Wells, 646 F.3d 1097, 1102 (8th Cir.2011). First, we address the sufficiency of the evidence for the jurisdictional element. Under 18 U.S.C. § 2332a(a)(2)(D), federal jurisdiction is allowed where the offense “affect[s] interstate or foreign commerce.” When Congress uses the unqualified language “affects interstate commerce” as the jurisdictional hook in a statute, the language “signal[s] Congress’ intent to invoke its Ml authority under the Commerce Clause.” Jones v. United States, 529 U.S. 848, 854, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). Where a statute contains “an express jurisdictional nexus to interstate commerce,” violations that have merely a de minimis effect on interstate commerce satisfy the jurisdictional requirement. United States v. Dobbs, 449 F.3d 904, 912 (8th Cir.2006). We have not yet had an opportunity to determine what activities sufficiently affect interstate commerce to be actionable under section 2332a. However, we have ample caselaw touching on what is required to show an activity affects commerce under statutes similar to section 2332a that also contain the “affecting interstate commerce” language as the jurisdictional hook. Our Hobbs Act jurisprudence is helpM, and other circuits have relied on Hobbs Act cases in determining what activities sufficiently affect interstate commerce so as to be covered by section 2332a. See, e.g., United States v. Davila, 461 F.3d 298, 306 (2d Cir.2006) (applying Hobbs Act jurisdiction theories to an 18 U.S.C. § 2332a case). The Hobbs Act, 18 U.S.C." } ]

[ { "docid": "9840066", "title": "", "text": "It has generally been held that a corporation and its employees cannot conspire with each other in violation of section 1985. Whitten v. Petroleum Club of Lafayette, 508 F.Supp. 765, 770-71 (W.D.La.1981); Harris v. Warner-Lambert Co., 486 F.Supp. 125, 127 (N.D.Ga.1980); Girard v. 94th & Fifth Avenue Corp., 530 F.2d 66 (2d Cir.1976), cert. denied, 425 U.S. 974, 96 S.Ct. 2173, 48 L.Ed.2d 798 (1976); Dombrowski v. Dowling, 459 F.2d 190 (7th Cir.1972); but see Hodgin v. Jefferson, 447 F.Supp. 804 (D.Md.1978); Dupree v. Hertz Corp., 419 F.Supp. 764 (E.D.Pa.1976). Defendants are entitled to judgment in their favor on this claim. V. Liability of the Parent Corporation Defendants argue that Winn-Dixie Stores, Inc., the parent corporation, cannot be held liable in this case for the acts of-employees of its subsidiary, the Winn-Dixie Atlanta division. It is established that a parent corporation and its subsidiary can be jointly liable under Title VII. Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1159-60 (N.D.Tex.1979); EEOC v. Upjohn Corp., 445 F.Supp. 635, 638-39 (N.D.Ga.1977) (Murphy J.). See Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.1977). In EEOC v. Upjohn, the Court noted “two closely related bases” upon which a parent corporation’s liability for the discriminatory acts of a subsidiary may be predicated: First, there may be evidence that the two corporations were so closely related in their activities and management as to constitute an integrated enterprise.... The most appropriate and definitive method for a determination as to whether a consolidation of separate entities is warranted involves a utilization of the National Labor Relations Board’s single employer standards. This quadripartite test entails proof of: (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership or financial control. ... The second basis upon which to establish the responsibility of [a parent] for acts of its subsidiary ... involves agency, (citations omitted). Plaintiffs produced insufficient evidence under either theory to hold the parent liable for discrimination by the Atlanta subsidiary. There was no evidence whatsoever regarding common ownership or management, and none to suggest that the sub" } ]

[ { "docid": "15661469", "title": "", "text": "plaintiffs must show that TTU was their “employer” within the meaning of those statutes. It is undisputed that Barnes & Noble, not TTU, was plaintiffs’ direct employer. Although a direct employment relationship provides the usual basis for liability under the ADEA or ADA, courts have fashioned various doctrines by which a defendant that does not directly employ a plaintiff may still be considered an “employer” under those statutes. In one approach, courts examine whether two entities are so interrelated that they may be considered a “single employer” of an “integrated enterprise.” See, e.g., York v. Tennessee Crushed Stone Ass’n, 684 F.2d 360 (6th Cir.1982). In another approach, courts consider whether one defendant has control over another company’s employees sufficient to show that the two companies are acting as a “joint employer” of those employees. See, e.g., Carrier Corp. v. NLRB, 768 F.2d 778 (6th Cir.1985); Rivas v. Federacion de Asociaciones Pecuarias de Puerto Rico, 929 F.2d 814 (1st Cir.1991). A third approach examines whether the person or entity that took the allegedly illegal employment action was acting as the agent of another company, which may then be held liable as the plaintiffs’ employer. See, e.g., Deal v. State Farm County Mut. Ins. Co. of Texas, 5 F.3d 117 (5th Cir.1993); Fike v. Gold Kist, Inc., 514 F.Supp. 722 (N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.1981). Here, plaintiffs seek to hold TTU liable for the actions of Barnes & Noble under two of these theories. First, they argue that TTU and Barnes & Noble should be considered a “single employer.” Alternatively, they contend that TTU should be held liable for the conduct of Barnes & Noble under agency principles. A. Single Employer Under the “single employer” or. “integrated enterprise” doctrine, two companies may be considered so interrelated that they constitute a single employer subject to liability under the ADEA and/or the ADA. See Armbruster, 711 F.2d at 1337-38 (Title VII); York, 684 F.2d at 362 (ADEÁ). In determining whether to treat two entities as a single employer, courts examine the following four factors: (1). interrelation of operations, i.e., common offices, common" }, { "docid": "22222764", "title": "", "text": "management are sufficiently interrelated. Whether transfer from one workforce to another constitutes a “promotion” or a “hiring” depends on the facts of each particular case; however, the degree of interrelatedness between companies required before an employee will be considered to have been “promoted” as he transfers from one to the next cannot reasonably be said to exceed that degree of connexity which the courts require for a finding of joint employer or integrated enterprise status. The term “employer” as used in Title VII of the Civil Rights Act was meant to be liberally construed. Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391 (8th Cir.1977); Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973). Over the past decade, numerous courts have drawn upon theories and rules developed in the related area of labor relations in determining when separate business entities are sufficiently interrelated for an employee whose Title VII rights have been violated to file a charge against both entities. Thus the rule has emerged that superficially distinct entities may be exposed to liability upon a finding that they represent a single, integrated enterprise: a single employer. Factors considered in determining whether distinct entities constitute an integrated enterprise are (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Courts applying this four-part standard in Title VII and related cases have focused on the second factor: centralized control of labor relations. Oaks v. City of Fairhope, 515 F.Supp. 1004 (S.D.Ala.1981); Fike v. Gold Kist, Inc., 514 F.Supp. 722, 727 (N.D.Ala.1981); EEOC v. Cuzzens of Georgia, 15 FEP 1807 (N.D.Ga.1977), rev’d on other grounds, 608 F.2d 1062 (5th Cir.1979). This criterion has been further refined to the point that “[t]he critical question to be answered then is: What entity made the final decisions regarding employment matters related to the person claiming discrimination?” Odriozola v. Superior Cosmetic Distributors, Inc., 531 F.Supp. 1070, 1076 (D.P.R.1982). The record in this case contains conflicting testimony on this question. Celanese plant manager Paul Hime testified that Ce-lanese had no control over ABI’s employment practices and decisions." }, { "docid": "7652589", "title": "", "text": "The primary test whether separate entities such as the Library Board and the City of Fairhope are joint employers is whether the entities jointly exercise “indicia of control” over the employee’s employment. See EEOC Compliance Manual § 201(d), citing Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964). “Indicia of control” has been defined by a leading treatise as: the authority to hire, transfer, promote, discipline or discharge; the authority to establish work schedules or direct work assignments; the obligation to pay or the duty to train the charging party. Employment Discrimination Law at 848. Under these factors, the City of Fairhope possessed no indicia of control vis-a-vis Oaks; only the Library Board exercised such control. Indeed, Alabama law vests “full power and authority” over such matters in the Library Board. See Code of Ala. 1975, § 11-90-3. 15. In Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977), the court adopted the federal labor law doctrine on joint employer status in resolving a joint employer issue under Title VII. The court adopted the four factors promulgated by the National Labor Relations Board for determining whether consolidation of separate entities is proper: (1) interrelation of operations; (2) common management; (3) centralized control of labor relations; and, (4) common ownership or financial control. Baker, 560 F.2d at 392. District courts within this circuit have employed the four-factor Baker analysis in determining joint employer status. Ingber v. Ramada Inns, Inc., 20 F.E.P. 1006, 1007 (U.S.D.C. N.D.Ga. 1979); Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1160 (N.D.Tex.1979); McLendon v. Continental Trailways, Inc., 18 F.E.P. 1698, 1702 (U.S.D.C. N.D.Tex.1978); EEOC v. Upjohn Corp., 445 F.Supp. 635, 638-39 (N.D.Ga.1977). Without specifically mentioning the four-prong test, the Fifth Circuit recently cited Baker with approval in Quijano v. University Federal Credit Union, 617 F.2d 129, 131 (5th Cir. 1980). In Dumas v. Town of Mt. Vernon, Alabama, 612 F.2d 974 (5th Cir. 1980), the Fifth Circuit cited the four factors and addressed the joint-employer question: We decline to apply this theory to hold that the town and the" }, { "docid": "14824587", "title": "", "text": "liable for its subsidiary's actions. See Nation v. Winn-Dixie Stores, Inc., 567 F.Supp. 997, 1010 (N.D.Ga.1983) (Evans, J.), Greason v. Southeastern Railroad Associated Bureaus, 650 F.Supp. 1, 4 (N.D.Ga.1986) (Ward, J.), EEOC v. Upjohn Corp., 445 F.Supp. 635 (N.D.Ga.1977) (Murphy, J.). B. The “Agency” Test Courts which have applied the “integrated enterprise” test frequently undertake an additional inquiry to determine whether the subsidiary can be considered a mere agent of the parent corporation. This “agency” test stems from the definition of “employer” as laid out in 29 U.S.C. § 630(b). Under Section 630(b), an agent of a corporate employer is also considered an employer. See Nation, 567 F.Supp. at 997, Greason, 650 F.Supp. at 1. Thus, where a subsidiary is deemed to act as the parent company’s agent, both the subsidiary and the parent will be deemed the employer of the subsidiary’s personnel for the purposes of the ADEA. C. The “Alter Ego” Test Under the third test, the “alter ego” test, the court examines whether the subsidiary corporation is a separate entity from the parent corporation, or merely the parent’s “alter ego.” If the court finds that a subsidiary is simply the parent’s “alter ego,” the court may disregard the parent company’s separate existence to prevent fraud or injustice. See, e.g., Publicker Industries, Inc. v. Roman Ceramics Corp., 603 F.2d 1065 (3d Cir.1979). D. The “Mere Instrumentality” Test The fourth test, the “mere instrumentality” test, is closely related to the “alter ego” test. Under the “mere instrumentality” test, the court may hold a parent company liable for its subsidiary’s actions if the subsidiary is merely an instrument for the parent’s wrongdoing. In such a case, the court is free to disregard the parent’s separate existence and “pierce the corporate veil” to prevent unjust loss or injury to the plaintiff. See, e.g., Fanfan v. Berwind Corp., 362 F.Supp. 793, 795 (E.D.Pa.1973). Neither the second test (“alter ego”) nor the third test (“mere instrumentality”) is applicable in the case at hand, since the allegations concern age discrimination rather than fraud or tortious conduct. However, these tests are instructive because, like the" }, { "docid": "14002333", "title": "", "text": "12, 55 L.Ed.2d 40 (1978), as was the statutory definition of \"employer,\" (which relates to the scope of the law's substantive provisions), we may look to constructions of the term in the Title VII (and thus the NLRA) context for guidance. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 395 n. 11, 102 S.Ct. 1127, 1133 n. 11, 71 L.Ed.2d 234, rehearing denied, 456 U.S. 940, 102 S.Ct. 2001, 72 L.Ed.2d 461 (1982) (ADEA modeled after Title VII); see also EEOC v. Zippo Mfg. Co., 713 F.2d 32, 36 (3d Cir.1983); cf. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755-56, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979). . The courts, in the Title VII context, have inappropriately used the terms \"single employer\" and “joint employer” interchangeably, which in fact refer to two distinct concepts. These distinctions are thoroughly discussed in NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117, 1123 (3d Cir.1982). The \"single employer” inquiry, not applicable here, involves the question of whether two allegedly separate business enterprises should in fact be treated as a single entity. In Radio and Television Broadcast Technicians Local 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965), the Supreme Court recognized the validity of the National Labor Relations Board's approach in a labor dispute to determining whether various business entities constitute a \"single employer” by considering whether they \"comprise a single enterprise.” Id. The Supreme Court set out the standard for the “single employer” inquiry as follows: \"[I]n determining the relevant employer, the [National Labor Relations] Board considers several nominally separate business entities to be a single employer where they comprise an integrated enterprise.... The controlling criteria ... are interrelation of operations, common management, centralized control of labor relations and common ownership.” Radio & Television Broadcast Technicians, 380 U.S. at 256, 85 S.Ct. at 877 (citations omitted). See abo McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 (11th Cir.1987); EEOC v. Wooster Brush Company Employees Relief Ass’n, 727 F.2d 566, 571-73 (6th Cir.1984); Trevino v. Celanese" }, { "docid": "6663767", "title": "", "text": "must be considered an “employer” within the meaning of the ADEA, 29 U.S.C. § 630(b), according to any of the accepted tests for parent corporation responsibility. In determining whether a parent corporation should be considered amenable to suit, Courts have generally applied one of three tests: (1) the “integrated enterprise” test; (2) the “alter ego” test or the (3) “mere instrumentality” test. The integrated enterprise test, which has been specifically applied to ADEA cases, states that “the appropriate standard for determining whether nominally separate corporations are to be considered a single employer is whether they comprise an integrated enterprise.” Marshall v. Arlene Knitwear, Inc., 454 F.Supp. 715 (E.D.N.Y.1978) . Accord, Linskey v. Heidelberg Eastern, Inc., 470 F.Supp. 1181, 1184 (E.D.N.Y.1979) ; Woodford v. Kinney Shoe Corporation, 369 F.Supp. 911 (N.D.Ga.1973). The “integrated enterprise” test for determining whether a parent corporation is an employer was first developed in labor relations cases. See Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965). It was later applied to cases involving Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. See, e.g., Williams v. New Orleans Steamship Association, 341 F.Supp. 613, 615 (E.D.La.1972). A test of corporate identity applied in Title VII cases is equally appropriate to a suit brought pursuant to the ADEA. The U. S. Supreme Court has held that the ADEA and Title VII should be construed similarly in light of their common language and purpose. See Oscar Mayer and Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979). In applying the integrated enterprise test, the Court assesses the (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership or financial control existing between the parent corporation and the subsidiary. Under the alter ego test, a court may disregard a parent corporation’s separate existence when one corporation is merely the alter ego of another and where such disregard of the corporate form is necessary to “prevent fraud, illegality, or" }, { "docid": "9560129", "title": "", "text": "effect, the two corporations are one, courts are willing to consider the parent along with the subsidiary as the employer subject to the applicable statute. See, e.g., id.; Bruce v. S & H Riggers and Erectors, Inc., 732 F.Supp. 1172 (N.D.Ga.1990). However, this case presents a different situation because STP and IDC do not have an ownership interest in each other. In arguing that STP and IDC constitute a single employer, Rogers is in effect arguing that two corporations that share the same owner are a single employer. The single employer doctrine is not limited to parent-subsidiary relationships, but the issue becomes more difficult when considering whether two separate corporations owned by a single entity should be considered a single employer for purposes of the ADEA. Unlike when a parent and its subsidiary are viewed as one corporation because the parent controls the personnel decisions of the subsidiary, the fact two corporations share the same owner does not, in and of itself, tend to show that one of these corporations controls the personnel decisions of the other. Hence, those two corporations do not necessarily constitute a single employer subject to the ADEA. Mochelle v. Walter, Inc., 823 F.Supp. 1302 (M.D.La.1993) (two subsidiaries did not constitute single employer despite their ownership by same holding company). “The showing required to warrant a finding of single employer status has been described as ‘highly integrated with respect to ownership and operations.’ ” McKenzie v. Danvenport-Harris Funeral Home, 834 F.2d 930, 933 (11th Cir.1987) (quoting Fike v. Gold Kist, Inc., 514 F.Supp. 722, 726 (N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.1981)) (emphasis added). Moreover, under the single employer doctrine, the most important requirement is that there be sufficient indicia of an interrelationship between the immediate corporate employer and the affiliated corporation to justify the belief on the part of an aggrieved employee that the affiliated corporation is jointly responsible for the acts of the immediate employer. When such a degree of interrelatedness is present, we consider the departure from the “normal” separate existence between entities an adequate reason to view [one corporation’s] conduct as that" }, { "docid": "21907092", "title": "", "text": "and thereby regarded as an employer of 20 or more employees under the ADEA. The plaintiff’s second theory that the association and its members form an “integrated enterprise” which constitutes the employer is equally defective. This approach generally considers four factors to determine whether an integrated enterprise exists: (1) Interrelation of operations, i.e. common offices, common record keeping, shared bank accounts and equipment. (2) Common management, common directors and boards. (3) Centralized control of labor relations and personnel. (4) Common ownership and financial control. E. g. Baker v. Stuart Broadcasting Co., 560 F. 2d 389 (8th Cir. 1977); Fike v. Gold Kist, Inc., 514 F.Supp. 722 (N.D.Ala.1981); Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1160 (N.D.Tex.1979); Marshall v. Arlene Knitwear, Inc., 454 F.Supp. 715, 719 (E.D.N.Y.1978), aff’d in part, reversed in part and remanded, 608 F.2d 1369 (2d Cir. 1979); Williams v. New Orleans Steamship Assn., 341 F.Supp. 613, 615 (E.D.La.1972). It is obvious that the four factors found in an integrated enterprise are not found here and that the association cannot properly be considered an integrated enterprise with its member companies. The defendant association is a separate legal entity, a nonprofit corporation with its own board of directors and officers. The members of the association are separately organized and managed and presumably competitors one with another. There is no centralized control of labor relations by the trade association and its member companies as was the case in United States v. Local 638, 360 F.Supp. 979 (S.D.N.Y.1973), remanded sub nom on other grounds, Rios v. Enterprise Assn., 501 F.2d 622 (2d Cir. 1974) (trade association was unified collective bargaining agent and established uniform working conditions); Williams v. New Orleans Steamship Assn., 341 F.Supp. 613 (E.D.La. 1972) (trade association established uniform employment practices and operated a hiring hall for all members). The fact that financial support for the association is provided collectively by the separate member companies does not indicate common ownership and control. The situation is analogous to the relationship between a parent and wholly-owned subsidiary corporation. Although there may be occasions in which it is proper to" }, { "docid": "15661470", "title": "", "text": "was acting as the agent of another company, which may then be held liable as the plaintiffs’ employer. See, e.g., Deal v. State Farm County Mut. Ins. Co. of Texas, 5 F.3d 117 (5th Cir.1993); Fike v. Gold Kist, Inc., 514 F.Supp. 722 (N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.1981). Here, plaintiffs seek to hold TTU liable for the actions of Barnes & Noble under two of these theories. First, they argue that TTU and Barnes & Noble should be considered a “single employer.” Alternatively, they contend that TTU should be held liable for the conduct of Barnes & Noble under agency principles. A. Single Employer Under the “single employer” or. “integrated enterprise” doctrine, two companies may be considered so interrelated that they constitute a single employer subject to liability under the ADEA and/or the ADA. See Armbruster, 711 F.2d at 1337-38 (Title VII); York, 684 F.2d at 362 (ADEÁ). In determining whether to treat two entities as a single employer, courts examine the following four factors: (1). interrelation of operations, i.e., common offices, common record keeping, shared bank accounts and equipment; (2) common management, common directors and boards; (3) centralized control of labor relations and personnel; and (4) common ownership and financial control. York, 684 F.2d at 362. None of these factors is conclusive, and all four need not be met in every case. Armbruster, 711 F.2d at 1337-38. Nevertheless, control over labor relations is a central concern. Id. at 1337; Murray v. Miner, 74 F.3d 402, 404 (2d Cir.1996); Frank v. U.S. West, Inc., 3 F.3d 1357, 1363 (10th Cir.1993); Rogers v. Sugar Tree Prod., Inc., 7 F.3d 577, 582 (7th Cir.1993); Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.1983). Examining the four factors in the context of this case, it is clear that TTU and Barnes & Noble cannot be treated as an integrated enterprise. First, there is insufficient evidence of interrelation of operations. TTU and Barnes & Noble each kept their own records, and maintained separate bank accounts and offices. See York, 684 F.2d at 362. There is simply no evidence of the type" }, { "docid": "22222784", "title": "", "text": "is exempt from taxation under section 501(c) of Title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers. 42 U.S.C.A. 2000e(b) (1981). . See, e.g., Woodford v. Kinney Shoe Corp., 369 F.Supp. 911, 917 (N.D.Ga.1973); United States v. Local 638, Enterprise Ass’n, 360 F.Supp. 979, 995 (S.D.N.Y.1973), modified 501 F.2d 622 (2d Cir.1974); United States v. Jacksonville Terminal Co., 351 F.Supp. 452, 454 (M.D.Fla.1972), aff'd in part, rev’d in part on other grounds and remanded, 451 F.2d 418 (5th Cir.1971); Williams v. New Orleans Steamship Ass’n, 341 F.Supp. 613, 615 (E.D.La.1972), aff’d in part, rev’d in part on other grounds and remanded, 673 F.2d 742 (5th Cir.1982). The rules developed by the NLRB for determining when two or more employers may be treated as one have also been extended to determinations of single employer status in actions brought under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-34, a statute patterned after Title VII. See, e.g., York v. Tennessee Crushed Stone Ass’n, 684 F.2d 360, 362 (6th Cir.1982); Marshall v. Arlene Knitwear, Inc., 454 F.Supp. 715 (E.D.N.Y.1978), aff’d in part, rev’d in part and remanded, 608 F.2d 1369 (2d Cir.1979). . Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391-92 (8th Cir.1977); Fike v. Gold Kist, Inc., 514 F.Supp. 722, 725-28 (N.D.Ala.1981); Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1160 (N.D.Tex.1979); EEOC v. Upjohn Corp., 445 F.Supp. 635, 638-39 (N.D.Ga.1977); Williams v. New Orleans Steamship Ass’n, 341 F.Supp. 613 (E.D.La.1972), aff’d in part, rev’d in part on other grounds and remanded, 673 F.2d 742 (5th Cir.1982). These four factors were first adopted by the Supreme Court for application in the area of labor relations in Radio Union v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 257, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965). Although we declined to apply the integrated enterprise standard in Dumas v. Town of Mt. Vernon, 612 F.2d 974, 979 n. 9 (5th Cir.1980), that case is readily distinguishable on its facts. Plaintiffs in" }, { "docid": "14210684", "title": "", "text": "Ms. Eichen-wald while she was working at Krigel’s corporate headquarters. . Mr. Stein was the manager of Krigel’s of Bannister Mall, Inc. in 1988 when he allegedly harassed Ms. Eichenwald. . Mr. Robert Ward became vice president of operations of the defendants in September of 1991, after Mr. Shine was terminated. . Because the discrimination complained of in this case occurred before December 1, 1991, the only remedy sought by plaintiffs is back pay. . Although the conduct must be sufficiently severe or pervasive, the plaintiff need not prove that she was psychologically injured: Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing their own careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their ... gender ... offends Title VII's broad rule of workplace • equality. Harris, — U.S. at - - -, 114 S.Ct. at 370-71. . The NLRB has identified seven indicia of interrelatedness: (1) combined accounting records; (2) combined bank accounts; (3) combined lines of credit; (4) combined payroll preparation; (5) combined switchboards; (6) combined telephone numbers; and (7) combined offices. See Western Union Corp. v. United Telegraph Workers, 224 NLRB 274, 277, 1976 WL 7018 (1976), aff’d, 571 F.2d 665 (D.C.Cir.1978). . Centralized control of labor practices is not only the most critical factor in the four factor analysis, but it is necessary for the two corporate entities to be treated as one. E.g., Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150 (N.D.Tex.1979); see also U.S. West, 3 F.3d at 1363 (citations omitted); Fike v. Gold Kist, Inc., 514 F.Supp. 722, 727 (N.D.Ala.1981). To establish centralized control, the parent corporation’s control of the day-to-day employment decisions of the subsidiary must be shown. U.S. West, 3 F.3d at 1363. Day-to-day control" }, { "docid": "14824585", "title": "", "text": "tests to determine whether a parent company’s control over a subsidiary is such that the parent should be held liable for the subsidi ary’s discriminatory treatment of its employees. The four tests, discussed in detail below, are (1) the “integrated enterprise” test, (2) the “agency” test, (3) the “alter ego” test, and (4) the “mere instrumentality” test. A.The “Integrated Enterprise” Test The “integrated enterprise” test had its genesis in labor law. The National Labor Relations Board (“NLRB”) first applied this four test part test to determine whether a consolidation of separate corporate entities was warranted. The quadripartite test entails proof of the following: (1) an interrelation of operations (2) common management (3) centralized control of labor relations, and (4) common ownership or financial control. See Radio & Television Broadcast Technicians, Local Union 1264, International Brotherhood of Electrical Workers, AFL-CIO v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965). The “integrated enterprise” test was soon applied to Title VII litigation to determine whether an active parent corporation, supervising and controlling the operations of its subsidiary, would be considered the “employer” of the subsidiary’s personnel for purposes of the Act. See, e.g., Williams v. New Orleans Steamship Association, 341 F.Supp. 613, 615 (E.D.La.1972), Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.1977). This “integrated enterprise” test is “well suited” to Title VII cases because it allows courts to read the term “employer” in a manner consistent with the purposes of the Act. See Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1160 (N.D.Tex.1979). The test is similarly applicable to ADEA cases. Oscar Mayer & Company v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979) (holding that interpretation of the ADEA should follow Title VII construction, given the common language and purposes of the two acts), see also Berkowitz v. Allied Stores of Penn-Ohio Inc., 541 F.Supp. 1209 (E.D.Pa.1982). By applying the four prongs of the “integrated enterprise” test to demonstrate a joint enterprise of the parent and subsidiary, the plaintiff can demonstrate that a parent company should be" }, { "docid": "23308175", "title": "", "text": "is appropriate to aggregate multiple entities for the purposes of counting employees. First, where two ostensibly separate entities are “ ‘highly integrated with respect to ownership and operations,’ ” we may count them together under Title VII. McKenzie, 834 F.2d at 933 (quoting Fike v. Gold Kist, Inc., 514 F.Supp. 722, 726 (N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.1981)). This is the “single employer” or “integrated enterprise” test. Second, where two entities contract with each other for the performance of some task, and one company retains sufficient control over the terms and conditions of employment of the other company’s employees, we may treat the entities as “joint employers” and aggregate them. See Virgo, 30 F.3d at 1359-60. This is the “joint employer” test. Third, where an employer delegates sufficient control of some traditional rights over employees to a third party, we may treat the third party as an agent of the employer and aggregate the two when counting employees. See Williams, 742 F.2d at 589. This is the “agency” test. See generally 2 Barbara Lin-demann & Paul Grossman, Employment Discrimination Law 1309-17 (3rd ed.1996). The issue before us involves the “single employer” test. In determining whether two non-governmental entities should be consolidated and counted as a single employer, we have applied the standard promulgated in NLRA cases by the National Labor Relations Board. See, e.g., McKenzie, 834 F.2d at 933. This standard sets out four criteria for determining whether nominally separate entities should be treated as an integrated enterprise. Under the so-called “NLRB test,” we look for “(1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.” Id.See also Radio and Television Broad. Technicians Local Union 1264 v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965). The four-factor NLRB “single employer” test was first applied in the Title VII context in Baker v. Stuart Broad. Co., 560 F.2d 389 (8th Cir.1977). Since that time, most of the circuits considering whether to integrate multiple entities under Title VII have seized upon that" }, { "docid": "23289065", "title": "", "text": "at one time. A liberal construction must be accorded to the term: employer. Trevino v. Celanese Corp., 701 F.2d 397, 403 (5th Cir. 1983); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391 (8th Cir.1977). McKenzie tried to prove to the trial court that Davenport-Harris’ and Protective’s activities, operations, ownership and management are sufficiently interrelated to be perceived as a single employer for purposes of Title VII. Counsel for the defendants contended that the separate corporate existence of Davenport-Harris and Protective could not be disregarded. Based on three depositions and a handful of exhibits alone, the district court judge determined that Protective could not be considered an employer of McKenzie. The court made this determination despite its finding that “there is substantial similarity in their corporate officers and in their directors, as well as a common business interest. The ownership of the two corporations, in effect, is also quite similar.” The court also found that “there is a significant degree of interrelationship.” Our role is to decide whether McKenzie presented sufficient evidence to create a genuine issue concerning whether Davenport-Harris and Protective should be treated as a single entity. The predominant trend in determining whether two businesses should be treated as a single or joint employer under § 2000e(b) is to apply the standards promulgated by the National Labor Relations Board (NLRB). See Equal Employment Opportunity Comm’n v. Wooster Brush Co. Employees Relief Ass’n, 727 F.2d 566, 572 (6th Cir. 1984); Childs v. Local 18, Int’l Bhd. of Elec. Workers, 719 F.2d 1379, 1382 (9th Cir.1983); Trevino, 701 F.2d at 404; Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 27 (1st Cir.1980); Baker, 560 F.2d at 392; Fike v. Gold Kist, Inc., 514 F.Supp. 722, 726 (N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.1981). The NLRB factors include: (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. The showing required to warrant a finding of single employer status has been described as “highly integrated with respect to ownership and operations.” Fike, 514 F.Supp. at 726. While it would be" }, { "docid": "21907091", "title": "", "text": "employer who may be sued as an employer in Title VII suits has been construed to be a supervisory or managerial employee to whom employment decisions have been delegated by the employer. For example, the president of a college who acts as the agent of the board of trustees may be sued as an employer in an employment discrimination suit. Goodman v. Board of Trustees, 498 F.Supp. 1329, 1332 (N.D.Ill. 1980). Similarly, the superintendent of a school district, as agent of the district, Kelly v. Richland School District, 463 F.Supp. 216 (D.S.C.1978), and the manager of an Employment Security Commission office as the agent of the state commission, Harbert v. Rapp, 419 F.Supp. 6 (W.D.Okla.1976) may be sued as employers under Title VII. These eases simply stand for the proposition that Miller could be sued in his official capacity as executive director, i.e. agent, of the association, provided the association was the employer of 20 persons. These eases do not support the plaintiff’s assertion that the association can be an agent of its active members and thereby regarded as an employer of 20 or more employees under the ADEA. The plaintiff’s second theory that the association and its members form an “integrated enterprise” which constitutes the employer is equally defective. This approach generally considers four factors to determine whether an integrated enterprise exists: (1) Interrelation of operations, i.e. common offices, common record keeping, shared bank accounts and equipment. (2) Common management, common directors and boards. (3) Centralized control of labor relations and personnel. (4) Common ownership and financial control. E. g. Baker v. Stuart Broadcasting Co., 560 F. 2d 389 (8th Cir. 1977); Fike v. Gold Kist, Inc., 514 F.Supp. 722 (N.D.Ala.1981); Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1160 (N.D.Tex.1979); Marshall v. Arlene Knitwear, Inc., 454 F.Supp. 715, 719 (E.D.N.Y.1978), aff’d in part, reversed in part and remanded, 608 F.2d 1369 (2d Cir. 1979); Williams v. New Orleans Steamship Assn., 341 F.Supp. 613, 615 (E.D.La.1972). It is obvious that the four factors found in an integrated enterprise are not found here and that the association cannot properly" }, { "docid": "6663768", "title": "", "text": "It was later applied to cases involving Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. See, e.g., Williams v. New Orleans Steamship Association, 341 F.Supp. 613, 615 (E.D.La.1972). A test of corporate identity applied in Title VII cases is equally appropriate to a suit brought pursuant to the ADEA. The U. S. Supreme Court has held that the ADEA and Title VII should be construed similarly in light of their common language and purpose. See Oscar Mayer and Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979). In applying the integrated enterprise test, the Court assesses the (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership or financial control existing between the parent corporation and the subsidiary. Under the alter ego test, a court may disregard a parent corporation’s separate existence when one corporation is merely the alter ego of another and where such disregard of the corporate form is necessary to “prevent fraud, illegality, or injustice, or when recognition of the corporate entity would defeat public policy or shield someone from liability for a crime.” Publicker Industries v. Roman Ceramics, 603 F.2d 1065 (3rd Cir. 1979), quoting Zubik v. Zubik, 384 F.2d 267, 272 (3rd Cir. 1967). Under the mere instrumentality theory, a parent corporation may be held liable for the acts of a subsidiary if the subsidiary is a mere instrumentality of the parent. To satisfy this test, three elements must be present. The plaintiff must show that (1) the parent controls the subsidiary to such a degree that the subsidiary is a mere instrumentality; (2) the parent is perpetuating a fraud or wrong through its subsidiary (e.g., violation of a statute); and (3) an unjust loss or injury to the claimant will result if the parent is allowed to be shielded by its separate corporate existence. Fanfan v. Berwind Corporation, 362 F.Supp. 793, 795 (E.D.Pa.1973). See also Whayne v. Transportation Management Service, 252 F.Supp. 573 (1966) aff’d 397 F.2d 287 (3rd Cir. 1968), cert. den., 393 U.S. 978," }, { "docid": "14210685", "title": "", "text": "employees because of their ... gender ... offends Title VII's broad rule of workplace • equality. Harris, — U.S. at - - -, 114 S.Ct. at 370-71. . The NLRB has identified seven indicia of interrelatedness: (1) combined accounting records; (2) combined bank accounts; (3) combined lines of credit; (4) combined payroll preparation; (5) combined switchboards; (6) combined telephone numbers; and (7) combined offices. See Western Union Corp. v. United Telegraph Workers, 224 NLRB 274, 277, 1976 WL 7018 (1976), aff’d, 571 F.2d 665 (D.C.Cir.1978). . Centralized control of labor practices is not only the most critical factor in the four factor analysis, but it is necessary for the two corporate entities to be treated as one. E.g., Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150 (N.D.Tex.1979); see also U.S. West, 3 F.3d at 1363 (citations omitted); Fike v. Gold Kist, Inc., 514 F.Supp. 722, 727 (N.D.Ala.1981). To establish centralized control, the parent corporation’s control of the day-to-day employment decisions of the subsidiary must be shown. U.S. West, 3 F.3d at 1363. Day-to-day control must actually be exercised; potential control is not sufficient. Id. Courts have found centralized control when the parent was involved in the subsidiary’s hiring decisions, Gold Kist, 514 F.Supp. at 727; when a common officer had approved all hiring decisions of the subsidiary, Armbruster v. Quinn, 711 F.2d 1332 (6th Cir.1983); and when the parent had issued personnel policies and also fired at least one subsidiary employee, Smith v. Iones Warehouse, Inc., 590 F.Supp. 1206 (N.D.Ill.1984). The Tenth Circuit has emphasized the importance of a plaintiff’s actual experience as an employee with respect to whether the parent corporation hired the plaintiff, fired the plaintiff, or supervised the plaintiff's work on a regular, daily basis. U.S. West, 3 F.3d at 1363. . The plaintiffs are offering Mr. Stein's alleged 1987-88 conduct only to show that Krigel’s management had knowledge of the sexual harassment occurring in their stores and to show a pattern of sexual harassment because the statute of limitations on his 1987-88 conduct ran before plaintiff's brought suit. . Scott Krigel was an officer of" }, { "docid": "7652590", "title": "", "text": "Title VII. The court adopted the four factors promulgated by the National Labor Relations Board for determining whether consolidation of separate entities is proper: (1) interrelation of operations; (2) common management; (3) centralized control of labor relations; and, (4) common ownership or financial control. Baker, 560 F.2d at 392. District courts within this circuit have employed the four-factor Baker analysis in determining joint employer status. Ingber v. Ramada Inns, Inc., 20 F.E.P. 1006, 1007 (U.S.D.C. N.D.Ga. 1979); Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1160 (N.D.Tex.1979); McLendon v. Continental Trailways, Inc., 18 F.E.P. 1698, 1702 (U.S.D.C. N.D.Tex.1978); EEOC v. Upjohn Corp., 445 F.Supp. 635, 638-39 (N.D.Ga.1977). Without specifically mentioning the four-prong test, the Fifth Circuit recently cited Baker with approval in Quijano v. University Federal Credit Union, 617 F.2d 129, 131 (5th Cir. 1980). In Dumas v. Town of Mt. Vernon, Alabama, 612 F.2d 974 (5th Cir. 1980), the Fifth Circuit cited the four factors and addressed the joint-employer question: We decline to apply this theory to hold that the town and the state or county, or all three, are a “single employer.” 612 F.2d at 980 n.9. Whether the court applies the four Baker factors or undertakes a more general factual analysis, the ultimate conclusion is the same — the City of Fairhope and the Library Board are not joint employers. 16. Oaks contends that the “Library Board is an agency of the City of Fairhope” and that she was thus “an employee of the city, regardless of the amount of control the city council retained over the Library’s day-to-day operations” (Oaks Response ¶ 7). Oaks further suggests that “a different test must be applied to a governmental employer than to joint private employers” (Oaks Response ¶9) and relies upon Manley v. Mobile County, 441 F.Supp. 1351 (S.D.Ala.1977). Manley is certainly not inconsistent with this court’s conclusion. In Manley, the court based its determination of joint employer status upon the fact that by statute the county was required to furnish the sheriff with the necessary quarters, books, stationery, office equipment, supplies, postage and other conveniences and equipment," }, { "docid": "14824586", "title": "", "text": "controlling the operations of its subsidiary, would be considered the “employer” of the subsidiary’s personnel for purposes of the Act. See, e.g., Williams v. New Orleans Steamship Association, 341 F.Supp. 613, 615 (E.D.La.1972), Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.1977). This “integrated enterprise” test is “well suited” to Title VII cases because it allows courts to read the term “employer” in a manner consistent with the purposes of the Act. See Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1160 (N.D.Tex.1979). The test is similarly applicable to ADEA cases. Oscar Mayer & Company v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979) (holding that interpretation of the ADEA should follow Title VII construction, given the common language and purposes of the two acts), see also Berkowitz v. Allied Stores of Penn-Ohio Inc., 541 F.Supp. 1209 (E.D.Pa.1982). By applying the four prongs of the “integrated enterprise” test to demonstrate a joint enterprise of the parent and subsidiary, the plaintiff can demonstrate that a parent company should be liable for its subsidiary's actions. See Nation v. Winn-Dixie Stores, Inc., 567 F.Supp. 997, 1010 (N.D.Ga.1983) (Evans, J.), Greason v. Southeastern Railroad Associated Bureaus, 650 F.Supp. 1, 4 (N.D.Ga.1986) (Ward, J.), EEOC v. Upjohn Corp., 445 F.Supp. 635 (N.D.Ga.1977) (Murphy, J.). B. The “Agency” Test Courts which have applied the “integrated enterprise” test frequently undertake an additional inquiry to determine whether the subsidiary can be considered a mere agent of the parent corporation. This “agency” test stems from the definition of “employer” as laid out in 29 U.S.C. § 630(b). Under Section 630(b), an agent of a corporate employer is also considered an employer. See Nation, 567 F.Supp. at 997, Greason, 650 F.Supp. at 1. Thus, where a subsidiary is deemed to act as the parent company’s agent, both the subsidiary and the parent will be deemed the employer of the subsidiary’s personnel for the purposes of the ADEA. C. The “Alter Ego” Test Under the third test, the “alter ego” test, the court examines whether the subsidiary corporation is a separate entity from the" }, { "docid": "22222785", "title": "", "text": "York v. Tennessee Crushed Stone Ass’n, 684 F.2d 360, 362 (6th Cir.1982); Marshall v. Arlene Knitwear, Inc., 454 F.Supp. 715 (E.D.N.Y.1978), aff’d in part, rev’d in part and remanded, 608 F.2d 1369 (2d Cir.1979). . Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391-92 (8th Cir.1977); Fike v. Gold Kist, Inc., 514 F.Supp. 722, 725-28 (N.D.Ala.1981); Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1160 (N.D.Tex.1979); EEOC v. Upjohn Corp., 445 F.Supp. 635, 638-39 (N.D.Ga.1977); Williams v. New Orleans Steamship Ass’n, 341 F.Supp. 613 (E.D.La.1972), aff’d in part, rev’d in part on other grounds and remanded, 673 F.2d 742 (5th Cir.1982). These four factors were first adopted by the Supreme Court for application in the area of labor relations in Radio Union v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 257, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965). Although we declined to apply the integrated enterprise standard in Dumas v. Town of Mt. Vernon, 612 F.2d 974, 979 n. 9 (5th Cir.1980), that case is readily distinguishable on its facts. Plaintiffs in Dumas sought under the four-part standard to integrate the Town of Mt. Vernon with either the county, or the state. As articulated, the standard is not readily applicable to governmental subdivisions, for it was “developed by the National Labor Relations Board to determine whether consolidation of separate private corporations is proper in determining the relevant employer for purposes of enforcing the National Labor Relations Act.” Owens v. Rush, 636 F.2d 283, 286 n. 2 (10th Cir.1980) (emphasis in original). . See note 3 supra & accompanying text. . See footnote 6, supra. See also Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527, 540-42 (5th Cir.1980), in which we held that the district court did not err in admitting evidence of past discriminatory acts in Title VII class actions challenging broad, established practices and policies. . Cf. EEOC v. Packard Electric Division, General Motors Corporation, 569 F.2d 315 (5th Cir. 1978), in which we found no clear error in the district court’s refusal to fully enforce broad EEOC investigative subpoenas of facility-wide “workforce break-outs.”" } ]

[ { "docid": "1171512", "title": "", "text": "a bankruptcy case in the district in which one of the following have been located for a longer portion of the 180 days preceding bankruptcy: 1) debtor’s domicile; 2) debtor’s residence; 3) debtor’s principal place of business in the United States; ór 4) debtor’s principal assets in the United States. The debtor argues that venue is proper in this district because its “principal assets” were located here for at least a year prior to bankruptcy. Despite the seeming incongruity of a pre-bankruptcy debtor operating from New York while storing its master tapes in Tennessee, Mr. Pollack’s testimony to this effect is uncon-tradicted. Since its principal assets were located here during the 180 days preceding bankruptcy, venue is proper in the Middle District of Tennessee. Discretionary transfer of venue between districts is now governed by 28 U.S. C.A. § 1412. The party seeking transfer has the burden of proving by a preponderance of evidence that transfer is warranted in the interest of justice or for the convenience of the parties. Frazier v. Lawyers Title Insurance Corp. (In re Butcher), 46 B.R. 109 (Bankr.N.D.Ga.1985). Factors relevant to transfer of venue include: (1) the proximity of creditors to the court; (2) the proximity of the debtor to the court; (3) the proximity of necessary witnesses; (4) the location of assets; and (5) the economics of administration of the estate. See Butcher, 46 B.R. at 112; In re Almeida, 37 B.R. 186 (Bankr.E.D.Pa.1984); Cole Associates, Inc. v. Howes Jewelers, Inc. (In re Cole Associates, Inc.), 7 B.R. 154 (Bankr.D.Utah 1980); and McLemore v. Thomasson (In re Thomasson), 60 B.R. 629 (Bankr.M.D.Tenn.1986). The most important of the factors listed above is “economic and efficient administration of the estate.” See Landmark Capital Co. v. North Central Development Co. (In re Landmark Capital Co.), 20 B.R. 220 (S.D.N.Y.1982), aff'g, In re Landmark Capital Co., 19 B.R. 342 (Bankr.S.D.N.Y.1982); In re Walston Air-business, Inc., 26 B.R. 955 (Bankr.N.D.Ill.1983). This factor “encompasses all of the preceding factors.” In re Walston Airbusiness, Inc., 26 B.R. at 958 (quoting In re One-Eighty Investments, Ltd., 18 B.R. 725 (Bankr.N.D.Ill.1981). See also, In" } ]

[ { "docid": "1106802", "title": "", "text": "The proximity of the witnesses necessary to the administration of the estate; (4) The location of the [debtor’s assets; and (5) The economic administration of the estate. In re Portjeff Development Corp., 118 B.R. 184, 193 (Bankr.E.D.N.Y.1990); In re Consolidated Pier Deliveries, Inc., 34 B.R. 327, 328 (Bankr.E.D.N.Y.1983); In re Developers of Caguas, Inc., 26 B.R. 977, 980 (Bankr.E.D.N.Y.1983); In re Dock of the Bay, Inc., 24 B.R. 811, 815-16 (Bankr.E.D.N.Y.1982); In re Suzanne De Lyon, Inc., 125 B.R. 863, 868 (Bankr.S.D.N.Y.1991); In re Uslar, 131 B.R. 22 (Bankr.E.D.Pa.1991). Furthermore, many courts have included as a significant consideration, “a state’s interest in having local controversies decided within its borders.” Portjeff Development, 118 B.R. at 193; In re Toxic Control Technologies, Inc., 84 B.R. 140, 143 (Bankr.N.D.Ind.1988); McLemore v. Thomasson (In re Thomasson), 60 B.R. 629, 632 (Bankr.M.D.Tenn.1986); In re Boca Raton Sanctuary Assoc., 105 B.R. 273, 275 (Bankr.E.D.Pa.1989). 1.Proximity of Creditors to the Court It would be in the best interest of the creditors to have this case transferred to New Jersey. The Debtor lists 47 creditors, 55% of which are located in the State of New Jersey. Specifically, there are 26 New Jersey creditors, 8 New York creditors (17%), 6 Pennsylvania creditors (13%), and 7 creditors from other states (15%). The New Jersey creditors, excluding NJDEPE, bear the greatest portion of the total value of claims, amounting to approximately $595,446.00. In addition, NJDEPE is listed in the Debtor’s Schedule of Twenty Largest Unsecured Creditors as having a disputed claim in an undetermined amount. However, NJDEPE claims that the Debt- or’s potential maximum liability owed to it is approximately $10 million. This would make NJDEPE, by far, the largest single creditor in this case. The Debtor claims, in support of its argu-. ment, that the Unsecured Creditor’s Committee opposes transferring venue to New Jersey. However, in its statement to this Court, the Official Committee of Unsecured Creditors unequivocably stated that “the committee cannot support the retention of venue in the Eastern District of New York.... [VJenue properly belongs in the District of New Jersey.” Statement of the Official Committee of" }, { "docid": "18741019", "title": "", "text": "refers to the catch-all grounds of where \"cause exists” could possibly include issues of venue. . See, e.g., John E. Burns Drilling Co. v. Central Bank of Denver, 739 F.2d 1489, 1493-94 (10th Cir.1984): Matter of Colorado Energy Supply, Inc., 728 F.2d 1283, 1286-87 (10th Cir.1984). . Norton, supra, goes on to suggest the following: Moreover, if the transferee jurisdiction has a general order of reference in effect under § 157(a), then, since a proceeding transferred to the District Court would be referred automatically, without more, to the Bankruptcy Court, it is appropriate for the Bankruptcy Court’s change of venue order to direct the transfer of the case or proceeding directly to the Bankruptcy Court of the other district. . See, e.g., In re D’Angona, 74 B.R. 577, 578 (Bankr.D.R.I.1987); In re 19101 Corp., 74 B.R. 34, 35 (Bankr.D.R.I.1987); In re Waits, 70 B.R. 591, 594 (Bankr.S.D.N.Y.1987); In re F.S. Airlease II, Inc., 67 B.R. 428, 431-32 (Bankr.W.D.Pa.1986); In re Whilden, 67 B.R. 40, 42 (Bankr.M.D.Fla.1986); In re Thomasson, 60 B.R. 629, 631 (Bankr.M.D.Tenn.1986); In re Eleven Oak Tower Ltd. Partnership, 59 B.R. 626, 628 (Bankr.N.D.Ill.1986); In re Oceanquest Feeder Service, Inc., 56 B.R. 715, 718 (Bankr.D.Conn.1986); In re Leonard, 55 B.R. 106, 108 (Bankr.D.D.C.1985). Contra, In re Greiner, 45 B.R. 715, 716 (Bankr.D.N.D.1985). . The other three possible premises correlate directly to the grounds specified in Rule B-106(1)(A)-(C). . This procedure is patterned after the procedure followed by United States Magistrates pursuant to 28 U.S.C. § 636(b) and the procedure followed for abstention motions concerning adversary proceedings provided by Bankruptcy Rule 5011(b). . Transfer of this case may also be proper for the reasons aptly stated in Judge J. Thomas Greene's memorandum decision in In re Retirement, Inc. at Western Hills, Ltd., Misc. No. 87-G-143, concerning another related Georgia limited partnership. .See In re Old Delmar Corp., 45 B.R. 883, 884-85 (S.D.N.Y.1985); In re Eleven Oak Tower Limited Partnership, 59 B.R. 626, 630 (Bankr.N.D.Ill.1986); In re Landmark Capital Co,, 19 B.R. 342 (Bankr.S.D.N.Y.1982), aff'd 20 B.R. 220 (S.D.N.Y.1982); In re Greenridge Apts., 13 B.R. 510, 512 (Bankr.D.Haw.1983)." }, { "docid": "9614158", "title": "", "text": "questioned), with In re HME Records, Inc., 62 B.R. 611 (Bankr.M.D.Tenn.1986) (on remand, original motion denied for lack of jurisdiction, second motion made in district court); Armstrong v. Rainier Financial Services Co. (In re Greiner), 45 B.R. 715 (Bankr.N.D.1985) see also, Moody v. Empire Life Insurance Company (In re Moody) 46 B.R. 231, 234 (M.D.N.C.1985) (the district court in dicta assumes change effected by passage of 28 U.S.C. § 1412). This court agrees with the majority’s reasoning which treats a motion for a transfer of venue as a core matter, concerning the administration of the estate under 28 U.S.C. § 157(b)(2)(A) which is heard pursuant to the district court’s order of reference under 28 U.S.C. § 157(a). VENUE The court, in the exercise of its discretion, weighs a number of factors in determining whether or not to grant a motion to transfer venue. The factors are listed in Commonwealth of Puerto Rico v. Commonwealth Oil Refining Company, Inc. (In re Commonwealth Oil Refining Company, Inc.), 596 F.2d 1239, 1247 (5th Cir.1979) cert. denied. 444 U.S. 1045, 100 S.Ct. 732, 62 L.Ed.2d 731 (1980); Hadar Leasing International Co., Inc. v. D.H. Overmyer Telecasting Company, Inc. (In re Hadar Leasing International Co., Inc.), 14 B.R. 819, 820 (S.D.N.Y.1981); In re Boca Development Associates, 18 B.R. 648, 652 (Bankr.S.D.N.Y.1982); and General Electric Pension Trust v. BSJ Tower Associates (In re BSJ Tower Associates), 11 B.R. 449, 450 (Bankr.S.D.N.Y.1981). These factors did not change with the passage of 28 U.S.C. § 1412 although the list gets longer as courts have added other factors as the circumstances of the case have indicated. F/S Airlease II, Inc. A Delaware Corporation v. Aerothrust Corporation (In re F/S Airlease II, Inc. A Delaware Corporation), 67 B.R. at 432; Burlingame v. Whilden (In re Whilden), 67 B.R. at 42; In re HME Records, Inc., 62 B.R. at 613; McLemore v. Thomasson (In re Thomasson), 60 B.R. at 632 (10 factors). These factors may be stated as follows: (1) The proximity to the court of: (a) creditors (b) debtors (c) assets (d) witnesses and evidence (2) The relative economic harm" }, { "docid": "11087081", "title": "", "text": "immediately preceding such commencement, or for a longer portion of such one-hundred-and-eighty-day period than the domicile, residence, or principal place of business, in the United States, or principal assets in the United States, of such person were located in any other district. 28 U.S.C. 1408. Under 28 U.S.C. § 1408, venue in this case properly resides in either this district or the Western District of Oklahoma. Change of venue is governed by 28 U.S.C. § 1412 which provides: A district court may transfer a case or proceeding under title 11 to a district court for another district, in the interest of justice or for the convenience of the parties. 28 U.S.C. § 1412. Additionally, Bankruptcy Rule 1014(a) provides: (1) Cases Filed in Proper District. If a petition is filed in a proper district, on timely motion of a party in interest, and after hearing on notice to the petitioners and to other persons as directed by the court, the case may be transferred to any other district if the court determines that the transfer is for the convenience of the parties and witnesses in the interest of justice. Bankruptcy Rule 1014(a). Although the decision as to whether to transfer or retain a case lies within the sound discretion of the court, courts have looked at a number of factors in determining whether a transfer of a given case would be in the interest of justice and convenience to the parties. In re Eleven Oak Tower Limited Partnership, 59 B.R. 626 (Bankr.N.D.Ill.1986); In re Butcher, 46 B.R. 109, 112 (Bankr.N.D.Ga.1985). These factors include: (1) location of the creditors; (2) location of the debtor; (3) location of witnesses necessary to the administration of the estate; (4) location of the debt- or’s assets; and (5) which forum would provide for the most efficient and economical administration of the case. See, In re Bankers Trust, 403 F.2d 16 (7th Cir.1968); In re Eleven Oak Tower, Ltd. Partnership, supra; In re Old Delmar Corp., 45 B.R. 883 (S.D.N.Y.1985); In re Ryan, 38 B.R. 917 (Bankr.N.D.Ill.1984). The only one of the above factors which favors venue" }, { "docid": "9614156", "title": "", "text": "respect to liens on its rents (the “cash collateral order”) which conditioned the debtors’ use of 25% of these rents on the deposit of the remaining 75% above $13,-000 be paid to the lienor and a monthly report detailing the expenditure of these sums to be filed with this court. The money remains unaccounted for as none of these reports has been filed. On July 25, 1986 the cash collateral order was amended to allow the expenditure of $32,000 more of the cash collateral to be used to renovate premises at Smyrna’s property as was its obligation as landlord pursuant to a lease it assumed. DISCUSSION Rose bottoms its motion on 28 U.S.C. § 1406 and § 1412. Section 1406 is only applicable when venue is improper and is used to avoid the harshness of a dismissal. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962). It was admitted by movant at the hearing that venue was properly laid pursuant to 28 U.S.C. § 1408(2) so that the only issue for consideration is whether section 1412 requires a permissive transfer. Section 1412 states: A district court may transfer a case or a proceeding under title 11 to a district court for another district, in the interest of justice or for the convenience of the parties. [2] There is a split of authority as to whether the change in section 1412 as enacted by the Bankruptcy Amendments and Federal Judgeship Act of 1984 from section 1412’s predecessor statute 28 U.S.C. § 1475 deprives a bankruptcy court of its jurisdiction to hear a change of venue motion and ordering a transfer to another district. Compare F/S Airlease II, Inc. A Delaware Corporation v. Aerothrust Corporation (In re F/S Airlease II, Inc. A Delaware Corporation), 67 B.R. 428, 431 (Bankr.W.D.Pa.1986); Burlingame v. Whilden (In re Whilden) 67 B.R. 40, 41-42 (Bankr.M.D.Fla.1986); McLemore v. Thomasson (In re Thomasson), 60 B.R. 629, 630-32 (Bankr.M.D.Tenn.1986); In re Oceanquest Feeder Service, Inc., 56 B.R. 715 (Bankr.D.Conn.1986); In re Leonard, 55 B.R. 106 (Bankr.D.D.C.1985); In re Boeckman, 54 B.R. 110 (Bankr.D.S.D.1985) (jurisdiction not" }, { "docid": "13601607", "title": "", "text": "aware that other courts have reached the opposite conclusion. Lazaro, 128 B.R. at 175; In re Leonard, 55 B.R. 106 (Bankr.D.D.C.1985); In re Boeckman, 54 B.R. 110 (Bankr.D.S.D.1985). However, this Court respectfully disagrees with the holdings of these cases. Accordingly, since venue in this case is improper, the only alternatives are to dismiss the proceedings or transfer them to the proper district. 3.INTEREST OP JUSTICE Although it has been determined that venue is improper in this district, and the case must be transferred, the Court will address the arguments of the parties concerning the district which would better serve the interest of justice and the convenience of the parties. Most courts that have addressed the issue, including this Court, have held that six factors are to be considered in making the determination of whether to transfer a case in the interest of justice or for the convenience of the parties. The six factors are: 1. The proximity of creditors of every kind to the Court; 2. The proximity of the debtor to the Court; 3. The proximity of the witnesses necessary to the administration of the estate; 4. The location of the assets; 5. The economic administration of the estate; and 6. The necessity for ancillary administration if bankruptcy should result. In re Commonwealth Oil Refining Co., 596 F.2d 1239 (5th Cir.1979); In re Butcher, 46 B.R. 109 (Bankr.N.D.Ga.1985); In re Geis, 66 B.R. 563 (Bankr.N.D.Ga.1986); see also In re Paul Rothman Industries, Ltd., Case No. 84-03194A (Bankr.N.D.Ga. September 13, 1984) (B.J. Kahn); Waits, 70 B.R. at 594-95; In re Ridgely Communications, Inc., 107 B.R. 72 (Bankr.D.Md.1989); In re Pope Vineyards, 90 B.R. 252 (Bankr.S.D.Tex.1988); Townsend, 84 B.R. at 767. The record shows that the Illinois and Boca Raton Clubs have few connections with this district. As previously noted, the Illinois Club’s sole place of business and sole assets are in Chicago Illinois, and the majority of creditors are located in Illinois. Moreover, C. Itoh, the largest secured creditor, is a Japanese concern, and is not located in Georgia. Similarly, the Boca Raton Club’s sole place of business and sole" }, { "docid": "18894519", "title": "", "text": "one district.” In re Hadar Leasing International Co., Inc., 14 B.R. at 820; In re Slentz, 94 B.R. at 450; In re Ryan, 38 B.R. 917, 921 (Bankr.N.D.Ill.1984). Also relied on is a state’s interest in having local controversies decided within its borders. In re Toxic Control Technologies, Inc., 84 B.R. at 143; In re Thomasson, 60 B.R. 629 (Bankr.M.D.Tenn.1986); In re Boca Raton Sanctuary Assoc., 105 B.R. 273, 275 (Bankr.E.D.Pa.1989). The Marina del Mar Chapter 11 Proceeding From the facts which appear on the face of Marina’s petition, even if no proceeding involving a related debtor were pending in this District, the parties affected would be entitled to have venue transferred to this District under Bankruptcy Rule 1014. The factor which “overwhelmingly militates in favor of transfer” is that Marina’s principal, if not sole, asset is a parcel of real property located in the Eastern District. In re Hadar Leasing International Co., 14 B.R. 819; In re Old Delmar Corp., 45 B.R. 883, 884 (S.D.N.Y.1985); In re Landmark Capital Co., 20 B.R. at 224; In re Developers of Caguas, Inc., 26 B.R. at 980; In re Dock of the Bay, Inc., 24 B.R. at 815-16; In re Greenhaven Assoc., supra at 40; In re Pavilion Place Assoc., 88 B.R. at 36 and cases cited there. “In the interests of economical and efficient administration .... venue should remain close to the site of the debtor’s principal asset.” In re Toxic Control Technologies, Inc., 84 B.R. at 143; In re Oklahoma City Assoc., 98 B.R. 194, 199 (Bankr.E.D.Pa.1989); In re Slentz, 94 B.R. at 450; In re Eleven Oak Tower Ltd. Partnership, 59 B.R. 626, 630 (Bank.N.D.Ill.1986); In re 19101 Corp., 74 B.R. 34, 35-36 (Bankr.D.R.I.1987). The case should be transferred even if all the other factors which the courts have recognized as pertinent to venue did not also support placing venue in the Eastern District rather than in Connecticut. Marina’s largest secured creditor, Greater New York, is located in the Town of Hempstead, New York, which is in the Eastern District; out of the 19 unsecured creditors listed in Marina’s" }, { "docid": "3096690", "title": "", "text": "28 U.S.C. § 1412 provides: “[a] district court may transfer a ease or proceeding under title 11 to a district court for another district, in the interests of justice or for the convenience of the parties.” The use of ‘district court’ in § 1412 has been held to incorporate the bankruptcy court because the bankruptcy court is a unit of the district court, 28 U.S.C. § 151, and because a change of venue determination is considered to be a core matter. A.J. Volpi Contractors, Inc. v. W-P Coal Co. (In re Wheeling-Pittsburgh Steel Corp.), 123 B.R. 537, 538 (Bankr. E.D.Pa.1991). “The decision on a motion for change of venue is within the sound discretion of the court.” In re 19101 Corp., 74 B.R. 34, 35 (Bankr.D.R.I.1987). Factors which a bankruptcy court should consider in determining whether to order a transfer under § 1412 include: (1) the proximity of assets, creditor, debt- or, its principals, evidence and witnesses to the court; (2) the economical and efficient administration of the estate; (3) the willingness of abilities of parties, debtor and creditors alike, to participate in the ease or in the adversary proceeding, vis a vis one venue over another; (4) the availability of compulsory process for attendance of unwilling witnesses and the cost of obtaining attendance; (5) the applicability of state law to the case and adversary proceedings; (6) the intertwined relationships between debtors; (7) the necessity for ancillary administration; and (8) a local interest in having a localized controversy decided at home. In re Columbia Western, Inc., 183 B.R. 660, 663 (Bankr.D.Mass.1995) (citing In re Toxic Control Technologies, Inc., 84 B.R. 140, 143 (Bankr.N.D.Ind.1988)). “The most important factor is said to be the ‘economic and efficient administration of the estate.’” In re Gurley, 215 B.R. 703, 709 (Bankr.W.D.Tenn.1997) (quoting In re HME Records, Inc., 62 B.R. 611, 613 (Bankr.M.D.Tenn.1986)). This Court finds that Counts IV, V, VI, X and XI (the Related Core Claims) should be transferred, along with Counts I, II, VII, VIII, IX and XIII (the non-core claims), to the United States District Court for the Northern District of" }, { "docid": "9614157", "title": "", "text": "for consideration is whether section 1412 requires a permissive transfer. Section 1412 states: A district court may transfer a case or a proceeding under title 11 to a district court for another district, in the interest of justice or for the convenience of the parties. [2] There is a split of authority as to whether the change in section 1412 as enacted by the Bankruptcy Amendments and Federal Judgeship Act of 1984 from section 1412’s predecessor statute 28 U.S.C. § 1475 deprives a bankruptcy court of its jurisdiction to hear a change of venue motion and ordering a transfer to another district. Compare F/S Airlease II, Inc. A Delaware Corporation v. Aerothrust Corporation (In re F/S Airlease II, Inc. A Delaware Corporation), 67 B.R. 428, 431 (Bankr.W.D.Pa.1986); Burlingame v. Whilden (In re Whilden) 67 B.R. 40, 41-42 (Bankr.M.D.Fla.1986); McLemore v. Thomasson (In re Thomasson), 60 B.R. 629, 630-32 (Bankr.M.D.Tenn.1986); In re Oceanquest Feeder Service, Inc., 56 B.R. 715 (Bankr.D.Conn.1986); In re Leonard, 55 B.R. 106 (Bankr.D.D.C.1985); In re Boeckman, 54 B.R. 110 (Bankr.D.S.D.1985) (jurisdiction not questioned), with In re HME Records, Inc., 62 B.R. 611 (Bankr.M.D.Tenn.1986) (on remand, original motion denied for lack of jurisdiction, second motion made in district court); Armstrong v. Rainier Financial Services Co. (In re Greiner), 45 B.R. 715 (Bankr.N.D.1985) see also, Moody v. Empire Life Insurance Company (In re Moody) 46 B.R. 231, 234 (M.D.N.C.1985) (the district court in dicta assumes change effected by passage of 28 U.S.C. § 1412). This court agrees with the majority’s reasoning which treats a motion for a transfer of venue as a core matter, concerning the administration of the estate under 28 U.S.C. § 157(b)(2)(A) which is heard pursuant to the district court’s order of reference under 28 U.S.C. § 157(a). VENUE The court, in the exercise of its discretion, weighs a number of factors in determining whether or not to grant a motion to transfer venue. The factors are listed in Commonwealth of Puerto Rico v. Commonwealth Oil Refining Company, Inc. (In re Commonwealth Oil Refining Company, Inc.), 596 F.2d 1239, 1247 (5th Cir.1979) cert. denied. 444 U.S." }, { "docid": "18736751", "title": "", "text": "be interpreted to give some full recognition to the congressional intent which has to permit the District courts to avoid the additional burden of hearing and deciding matters arising in a bankruptcy case, and Congress basically intended that the District court at least in the core matter will be involved only as an appellate tribunal. The instant adversary proceeding concerns an objection to discharge under 11 U.S.C. § 523 and is a “core” proceeding. Thus, the Motion for Change of Venue of this adversary proceeding is appropriately before this Court for a final disposition. See In re Leonard, supra, 55 B.R. at 109; In re Oceanquest Feeder Service, Inc., supra, 56 B.R. at 718. After careful consideration, this Court is satisfied that a Motion to Change Venue is a “proceeding” within the meaning of 28 U.S.C. § 157(a). The next issue to be considered is whether or not the Motion to change Venue should be granted by this Court. Transfer of venue is discretionary and the moving party has the burden to establish by a preponderance of the evidence before it can prevail. In re Thomasson, supra, 60 B.R. at 632; In re Butcher, 46 B.R. 109 (Bankr.N.D.Ga.1985); In re Legend Industries, Inc., 49 B.R. 935 (Bankr.E.D.N.Y.1985). In balancing the relative conveniences or hardships of the parties, courts have examined several factors which include: (1) the proximity of creditors to the court; (2) the proximity of the debtor to the court; (3) the proximity of necessary witnesses; (4) the location of assets; (5) the economic administration of the estate; (6) relative advantages and obstacles to a fair trial; (7) economic harm to a debtor; and (8) inability of a party to defend in the new forum. See In re Thomasson, supra, 60 B.R. at 632; In re Butcher, supra, 46 B.R. at 112; In re D’Andrea, 7 B.R. 695 (Bankr.D.Nev.1980). In the instant matter under consideration concededly a large number of witnesses to be produced by Burlingame reside in Oklahoma; however, if the adversary proceeding is transferred and is tried in Oklahoma, the Debtor would not be able to defend" }, { "docid": "18736428", "title": "", "text": "longer a two-fold test. But see, Birchminster Corporation of California, 6 B.R. 258 (Bankr.E.D.Pa.1980). (Holding under former § 1475 that the test for a properly filed case is twofold: interest of justice and convenience of parties). The power to transfer a case must be exercised cautiously. In re One-Eighty Investments, Ltd., 18 B.R. 725, 728 (Bankr.N.D.Ill.1981) (applying former 28 U.S.C. § 1475). The decision to transfer or retain a bankruptcy case lies within the sound discretion of the bankruptcy court. In re SOS Sheet Metal Co., 297 F.2d 32 (2d Cir.1961); In re Eleven Oak Tower Limited Partnership, 59 B.R. 626, 628 (Bankr.N.D.Ill.1986). This Court, in the exercise of its discretion, must weigh a number of factors before determining whether or not to grant a motion to transfer venue. Waits, supra, at 594. These factors may be listed as follows: 1) The proximity to the Bankruptcy Court of assets, creditors, debtor, its principals, evidence, and witnesses. 2) The willingness or abilities of parties, debtor and creditors alike, to participate in the case or in adversary proceedings, vis á vis one venue over another. But See 28 U.S.C. § 1409. Venue of proceedings arising under Title 11 (11 U.S.C. §§ 101 et seq.) or arising in or relating to cases under Title 11 and 28 U.S.C. § 1410. Venue of cases ancillary to foreign proceedings. 3) The economical and efficient administration of the estate. 4) The availability of compulsory process for attendance of unwilling witnesses and the cost of obtaining their attendance. 5) The applicability of State law to the case and adversary proceedings. See 28 U.S.C. § 1409. 6) The intertwined relationships of the debtors. 7) The necessity for ancillary administration. See 28 U.S.C. § 1410. 8) A local interest in having localized controversy decided at home. Finally, the burden of establishing that a case should be transferred is on the moving party, and must be shown by a preponderance of the evidence. In re United Button Co., 137 F. 668, 673 (D.Del.1904). Because the tests to change venue are now discrete, and because the Debtor presented more argument and" }, { "docid": "22978284", "title": "", "text": "and therefore within the holding in Marathon. Examples of proceedings which properly fall within the scope of the catchall provisions of § 157 may be found in Manville Corp. v. Equity Security Holders Committee (In re Johns-Manville Corp.), 60 B.R. 842 (S.D.N.Y.1986) (action to enjoin security holders committee from pursuing state court action to compel shareholders meeting is a core proceeding); Walter E. Heller & Company v. Langenkamp (In Re Tureaud), 59 B.R. 973 (N.D.Okla.1986) (trustee’s application for substantive consolidation of certain affiliate corporations constitutes core proceeding); In Re GHR Energy Corp., 60 B.R. 52 (Bkrtcy.S.D.Tex.1985) (motion made by creditor to disqualify law firm representing debtor in turnover litigation is a core proceeding); McLemore v. Thomasson (In Re Thomasson), 60 B.R. 629 (Bkrtcy.M.D.Tenn.1986) (motion to change venue is a core proceeding); In Re Oceanquest Feeder Service, Inc., 56 B.R. 715 (Bkrtcy.Conn.1986) (motion to change venue is a core proceeding); In Re Nexus Communications, Inc., 55 B.R. 596 (Bkrtcy.E.D.N.C.1985) (motion for 11 U.S.C. § 305 abstention and motion to assume lease are core proceedings); Rustic Mfg., Inc. v. Marine Bank Dane County (In Re Rustic Mfg., Inc.), 55 B.R. 25 (Bkrtcy.W.D.Wis.1985) (principal employees of corporate debtor’s action to enjoin secured creditor from maintaining state court action against their guarantees is a core proceeding). Despite the clear holding of Marathon and the Article III proscriptions, numerous courts still hold that a garden variety state law contract action is a core proceeding under the catchall provisions. The case perhaps most often cited to support such a finding is Lesser v. A-Z Associates (In Re Lion Capital Group), 46 B.R. 850 (Bkrtcy.S.D.N.Y.1985), aff'd 63 B.R. 199 (S.D.N.Y.1986). [Note, however, the limited effect of this affirmance discussed in-frai]. Lion Capital involved an adversary proceeding to enforce limited partners’ contractual capital obligations. The court held the action core under both the catchall provisions and § 157(b)(2)(E). In its opinion, the court cited the “considerable nexus between the exercise of Article I power to enable the district courts to refer core proceedings to the bankruptcy courts for final decision and the matters presented by these litigations” as" }, { "docid": "11087082", "title": "", "text": "for the convenience of the parties and witnesses in the interest of justice. Bankruptcy Rule 1014(a). Although the decision as to whether to transfer or retain a case lies within the sound discretion of the court, courts have looked at a number of factors in determining whether a transfer of a given case would be in the interest of justice and convenience to the parties. In re Eleven Oak Tower Limited Partnership, 59 B.R. 626 (Bankr.N.D.Ill.1986); In re Butcher, 46 B.R. 109, 112 (Bankr.N.D.Ga.1985). These factors include: (1) location of the creditors; (2) location of the debtor; (3) location of witnesses necessary to the administration of the estate; (4) location of the debt- or’s assets; and (5) which forum would provide for the most efficient and economical administration of the case. See, In re Bankers Trust, 403 F.2d 16 (7th Cir.1968); In re Eleven Oak Tower, Ltd. Partnership, supra; In re Old Delmar Corp., 45 B.R. 883 (S.D.N.Y.1985); In re Ryan, 38 B.R. 917 (Bankr.N.D.Ill.1984). The only one of the above factors which favors venue in this district is the location of the debtor. As to the others, the overwhelming number of creditors are located in Oklahoma. The largest secured creditor, DRG, which is not located in either Illinois or Oklahoma, prefers Oklahoma. Moreover, the debtor’s principal asset is in Oklahoma. Pickwick contends that managing partners which may be necessary participants and perhaps witnesses in administration of the estate are located in the Northern District of Illinois. However, the hearing which is likely to be dis-positive of the debtor’s principal asset (and consequently, its reorganization) would require witnesses to establish the value and viability of the apartment complex. Those probable witnesses are located in Oklahoma. This Court concludes that the bankruptcy court in Oklahoma is in a better position to efficiently and economically administer the estate. Two courts which have considered situations almost identical to the one in the instant case have ordered the proceedings transferred to the district where the property was located. In re Eleven Oaks Tower Limited Partnership, supra; In re Old Delmar Corp., supra. In both" }, { "docid": "13980465", "title": "", "text": "can be finally determined by the bankruptcy court without traverse of Northern Pipeline. Id. The adversary proceedings here concern discharge and dischargeability under 11 U.S.C.S. §§ 523 and 727 (Law.Coop.1986) and are core proceedings. 28 U.S.C.S. §§ 157(b)(2)(I) and (J) (Law.Coop.1986). The transfer of this case and these adversary proceedings is thus appropriately before the bankruptcy court for final disposition. Leonard, 55 B.R. at 109; Oceanquest, 56 B.R. at 718, 14 BANKR.CT.DEC. at 124, but see Moody, 46 B.R. at 234; Greiner, 45 B.R. at 716; Lieb, Correspondence, supra at 10. II. Transfer of venue is discretionary. Frazier, 46 B.R. at 112. The moving party must carry the burden of proof by a preponderance of the evidence. Id. Factors relevant to transfer of venue include: (1) the proximity of creditors to the court; (2) the proximity of the debtor to the court; (3) the proximity of necessary witnesses; (4) the location of assets; (5) the economics of administration of the estate; (6) the relative ease of access to sources of proof; (7) the availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining the attendance of willing witnesses; (8) the enforceability of judgment; (9) relative advantages and obstacles to a fair trial; and (10) a state’s interest in having local controversies decided within its borders. See Id.; In re Almeida, 37 B.R. 186, 188 (Bankr.E.D.Pa.1984); Jenkins Clinic Hospital Foundation, Inc. v. Dotson, 22 B.R. 990, 991, 9 BANKR.CT.DEC. (CRR) 862 (E.D.Tenn.1982); Nixon Machinery Co. v. Roy Energy, Inc., 27 B.R. 871, 872 (Bankr.E.D.Tenn.1983). The moving parties have satisfied their burden. These adversary proceedings involve litigation, transactions and witnesses all within the State of Illinois. Retaining venue in .the Middle District of Tennessee will cause extreme hardship to the real parties in interest, to witnesses and to the trustee who would be forced to prosecute these actions at significant expense and without support from the estate. Delays in prosecution are likely if venue is retained in this district, in light of the distant physical location of witnesses and evidence. This case should also be transferred to the" }, { "docid": "1171515", "title": "", "text": "debtor intends to remain here. Its master tapes, office, and employees are located here. So, too, is a substantial concentration of recording artists and related industries. Mr. Pollack can also appear at local bankruptcy hearings at minimal cost to the estate in time and expense. The court acknowledges that for some creditors this forum may be distant. However, unlike this court’s recent decision in McLemore v. Thomasson (In re Thomasson), 60 B.R. 629 (Bankr.M.D.Tenn.1986), assets and officers of the debtor are located in this district. Further, movant creditors, one from New York and one from the Netherlands Antilles with a representative in New York, have been quite active in this case. The court anticipates their continued participation should the case be retained here, as well as by any other interested creditor wherever located. In sum, factors relevant to discretionary transfer of venue militate in favor of retention of this case in the Middle District of Tennessee. Transfer would materially harm, if not destroy, the debtor’s prospects of reorganization. III. As noted above, this court deferred in February from hearing movants’ venue motions, based on language in 28 U.S.C.A. §§ 1408 and 1412. Since that time, a bankruptcy decision in this district has held that in cases and core adversary proceedings, a bankruptcy court can exercise the power to transfer venue under § 1412. McLemore v. Thomasson (In re Thomasson), 60 B.R. 629 (Bankr.M.D.Tenn.1986). This court recommends adoption of the Thomasson holding for future cases. This court also recommends that movants’ application for change of venue be denied for reasons that venue is proper in the Middle District of Tennessee and that retention of the case is in the interest of justice or for the convenience of the parties. . 28 U.S.C. § 1408. Venue of cases under title 11. Except as provided in section 1410 of this title, a case under title 11 may be commenced in the district court for the district— (1) in which the domicile, residence, principal place of business in the United States, or principal assets in the United States, of the person or entity that" }, { "docid": "18894520", "title": "", "text": "In re Developers of Caguas, Inc., 26 B.R. at 980; In re Dock of the Bay, Inc., 24 B.R. at 815-16; In re Greenhaven Assoc., supra at 40; In re Pavilion Place Assoc., 88 B.R. at 36 and cases cited there. “In the interests of economical and efficient administration .... venue should remain close to the site of the debtor’s principal asset.” In re Toxic Control Technologies, Inc., 84 B.R. at 143; In re Oklahoma City Assoc., 98 B.R. 194, 199 (Bankr.E.D.Pa.1989); In re Slentz, 94 B.R. at 450; In re Eleven Oak Tower Ltd. Partnership, 59 B.R. 626, 630 (Bank.N.D.Ill.1986); In re 19101 Corp., 74 B.R. 34, 35-36 (Bankr.D.R.I.1987). The case should be transferred even if all the other factors which the courts have recognized as pertinent to venue did not also support placing venue in the Eastern District rather than in Connecticut. Marina’s largest secured creditor, Greater New York, is located in the Town of Hempstead, New York, which is in the Eastern District; out of the 19 unsecured creditors listed in Marina’s petition, 14 are located in New York and 12 of these in the Eastern District: only two creditors are located in Connecticut. Although Marina claims its principal place of business to have been in the District of Connecticut for the six months preceding the filing of its petition and gives as its mailing address “Drawer 4037 — North Madison Shopping Center, Madison, Connecticut 06443 New Haven,” its only business is the operation of a marina within the Eastern District. Marina’s application to use cash collateral underlines the local nature of its operations. Its income is local from its shop and store, gas dock, snack bar and so are its expenses for parts, for maintenance, rubbish removal, utilities, et cetera. The books and records as to the day-to-day activities of Marina del Mar are in the Eastern District. What witnesses can be anticipated at the present time will be real estate appraisers familiar with property in the Eastern District, and such appraisers will almost necessarily be local persons. One reason why where a debtor’s assets consist" }, { "docid": "18736430", "title": "", "text": "evidence on the issue of the convenience of the parties, we first discuss whether venue should be transferred for that reason. The Debtor argues that since the principals are located in Texas and the sales and marketing activities are conducted in Texas, venue should be transferred to Texas. We find this argument unpersuasive in light of the totality of the circumstances presented to us. The majority of the creditors are located in or near Indiana. Moreover, the two largest creditors have expressed their preference for maintaining the case in Indiana. Some potential witnesses, and some of the Debtor’s officers and directors presently reside in or near Indiana. A primary consideration is that the Debt- or’s principal asset, its manufacturing plant, is located in Indiana. Compare, In re 19101 Corporation, 74 B.R. 34 (Bankr.D.R.I.1987). (Often, the location of the principal assets so affects the other factors that the location of the Debtor’s principal asset becomes a primary influence on the court). This is the situation here. In the interest of economical and efficient administration of this case, venue should remain close to the site of the Debt- or’s principal asset. Matters concerning real property have always been of local concern and traditionally are decided at the sites of the property. In re Eleven Oak Tower, Limited Partnership, 59 B.R. 626 (Bankr.N.D.Ill.1986). This court, sitting in the Northern District of Indiana is in a better position to apply local law to proceedings arising in or related to this case. The location of the principals and the sales and marketing officers are outweighed by the location of the creditors, potential witnesses and the principal asset. Thus, we find that the Debtor has not met its burden of establishing, by a preponderance of the evidence, that the case should be transferred to Texas for the convenience of the parties. Since the Debtor failed to satisfy the “convenience of parties test”, it must satisfy the “interest of justice test” to effect a change in venue. Like the “convenience of parties test” the Debtor has the burden of persuasion by a preponderance of the evidence. The" }, { "docid": "1106801", "title": "", "text": "is a creditor. However, in the present case, the creditor’s motion was previously granted and it is now the Debtor that bears the burden of proof. It must demonstrate by a fair preponderance of the evidence that a transfer of the case from one district to another is warranted. Gulf States Exploration Co. v. Manville Forest Products Corp. (In re Manville Forest Products Corp.), 896 F.2d 1384, 1390-91 (2d Cir.1990); Matter of Landmark Capital Co., 19 B.R. 342 (Bankr.S.D.N.Y.1982). The criteria employed in determining whether a transfer of venue based on the convenience of the parties and the interest of justice is appropriate, as set forth in Commonwealth of Puerto Rico v. Commonwealth Oil Refining Co. (In re Commonwealth Oil Refining Co.), 596 F.2d 1239, 1247 (5th Cir.1979), cert. denied, 444 U.S. 1045, 100 S.Ct. 732, 62 L.Ed.2d 731 (1980) (interpreting former Bankruptcy Rule 116, the predecessor of Fed. R.Bankr.P. 1014(a)), is as follows: (1) The proximity of creditors of every kind to the Court; (2) The proximity of the [debtor] to the Court; (3) The proximity of the witnesses necessary to the administration of the estate; (4) The location of the [debtor’s assets; and (5) The economic administration of the estate. In re Portjeff Development Corp., 118 B.R. 184, 193 (Bankr.E.D.N.Y.1990); In re Consolidated Pier Deliveries, Inc., 34 B.R. 327, 328 (Bankr.E.D.N.Y.1983); In re Developers of Caguas, Inc., 26 B.R. 977, 980 (Bankr.E.D.N.Y.1983); In re Dock of the Bay, Inc., 24 B.R. 811, 815-16 (Bankr.E.D.N.Y.1982); In re Suzanne De Lyon, Inc., 125 B.R. 863, 868 (Bankr.S.D.N.Y.1991); In re Uslar, 131 B.R. 22 (Bankr.E.D.Pa.1991). Furthermore, many courts have included as a significant consideration, “a state’s interest in having local controversies decided within its borders.” Portjeff Development, 118 B.R. at 193; In re Toxic Control Technologies, Inc., 84 B.R. 140, 143 (Bankr.N.D.Ind.1988); McLemore v. Thomasson (In re Thomasson), 60 B.R. 629, 632 (Bankr.M.D.Tenn.1986); In re Boca Raton Sanctuary Assoc., 105 B.R. 273, 275 (Bankr.E.D.Pa.1989). 1.Proximity of Creditors to the Court It would be in the best interest of the creditors to have this case transferred to New Jersey. The Debtor lists" }, { "docid": "12402396", "title": "", "text": "takes judicial notice of the fact that the United States Bankruptcy Court for the Middle District of Alabama operates under a general order of reference dated April 25,1985. CONCLUSIONS OF LAW 1. Determination under 28 U.S.C. § 157(b)(3). The first determination the Court must make is whether the Court may properly enter an order in this matter under 28 U.S.C. § 157(b)(1). 28 U.S.C. § 157(b)(3); Marill Alarm Sys. v. Equity Funding, 81 B.R. 119 (S.D.Fla.1987), aff'd 861 F.2d 725 (11th Cir.1988). The Court may hear and determine cases under title 11; the Court may also hear and determine core proceedings arising in or arising under cases under title 11. A proceeding for change of venue is a core proceeding in a title 11 case because it “involves fundamental bankruptcy issues, including, in Chapter 11 cases, a determination of whether a requested transfer would promote the economic and efficient administration of the estate.” In re Oceanquest Feeder Service, Inc., 56 B.R. 715, 718 (Bankr.D.Conn.1986), citing Matter of Commonwealth Oil Refining Co., Inc., 596 F.2d 1239, 1247 (5th Cir.1979), cert. denied, 444 U.S. 1045, 100 S.Ct. 732, 62 L.Ed.2d 731 (1980). Accord, In re Waits, 70 B.R. 591 (Bankr.S.D.N.Y.1987); Burlingame v. Whilden (In re Whilden), 67 B.R. 40 (Bankr.M.D.Fla.1986). The Court concludes, therefore, pursuant to § 157(b)(3), that it may enter an order in this matter because it is a core proceeding arising in a case under title ll. 2. Improper venue The first substantive issue the court must consider is the propriety of the debtors’ filing their joint petition in this district. Section 1408 of title 28 governs venue in bankruptcy cases; it provides: Except as provided in section 1410 of this title, a case under title 11 may be commenced in the district court for the district— (1) in which the domicile, residence, principal place of business in the United States, or principal assets in the United States, of the person or entity that is the subject of such case have been located for the one hundred and eighty days immediately preceding such commencement, or for a longer portion" }, { "docid": "14783627", "title": "", "text": "another case commenced by or against the same person in another court). This court may now determine the district in which Debtor’s case should proceed “in the interest of justice or for the convenience of the parties.” Id. at 1014-12. «Unlike Lamb, the parties to the instant action presented argument concerning the interest of justice and the convenience of the parties. Determination of the appropriate district requires consideration of the same factors necessary for resolution of a change of venue. 8 Collier on Bankruptcy at 111014.06 at 1014-12 (15th ed. 1988). Factors for this court’s consideration in determining which case should proceed are: 1. proximity of creditors of every kind to the court; 2. proximity of Debtor to the court; 3. proximity to the court of witnesses necessary to administration of the estate; 4. location of the assets; and 5. economic and efficient administration of the estate. Matter of Commonwealth Oil Refining Co., Inc., 596 F.2d 1239, 1247 (5th Cir.1979), cert. denied 444 U.S. 1045, 100 S.Ct. 732, 62 L.Ed.2d 731 (1980). See also Kotlicky v. Belford, 64 B.R. 679, 682 (N.D.Ill.1986); In Re Toxic Control Technologies, Inc., 84 B.R. 140 (Bkrtcy.N.D.Ind.1988) (factors for the court’s consideration (in addition to those previously enumerated) include: 1) intertwined relationships of the debtor; 2) local interest in having localized controversy decided at home); In Re Thomasson, 60 B.R. 629, 14 C.B.C.2d 1155 (Bkrtcy.M.D.Tenn.1986) (factors relevant to transfer of venue (in addition to those stated) include: 1) relative ease of access to sources of proof; 2) availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining the attendance of willing witnesses; 3) enforceability of judgment; 4) relative advantages and obstacles to a fair trial; and 5) a state’s interest in having local controversies decided within its borders (citations omitted)). Considering these factors and reviewing Debtor’s petition, the court notes that, in addition to the Internal Revenue Service, Debtor lists the states of Ohio and Michigan, as well as the city of Toledo, as creditors having priority. See Motion for Determination of Jurisdiction, Exhibit A, Schedule A-l (hereinafter Exhibit A). Additionally," } ]

[ { "docid": "22923636", "title": "", "text": "or af fecting interstate commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(8). Appellant contends that this provision violates the Commerce Clause based on the reasoning in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In Lopez, the Court invalidated former § 922(q) (the Gun-Free School Zones Act) on the ground that it lacked a jurisdictional element that would ensure that the firearm possession in question affects interstate commerce. The Lopez analogy is not well taken because, unlike the Gun-Free School Zones Act, the statute before us contains a jurisdictional element explicitly requiring a nexus between the possession of firearms and interstate commerce. This court’s post-Lopez decisions have upheld the constitutionality of a similar statutory provision forbidding the possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1). United States v. Polanco, 93 F.3d 555 (9th Cir.1996); United States v. Hanna, 55 F.3d 1456 (9th Cir.1995). As we recognized in Polanco, the jurisdictional element “insures, on a case-by-case basis, that a defendant’s actions implicate interstate commerce to a constitutionally adequate degree.” 93 F.3d at 563. Because § 922(g)(8) shares the same jurisdictional element as § 922(g)(1), we apply our analysis in Polanco and Hanna to reject the Commerce Clause attack on this statute. Moreover, every Court of Appeals that has considered this question has concluded that § 922(g)(8) is a valid exercise of Congress’ power under the Commerce Clause. United States v. Baker, 197 F.3d 211 (6th Cir.1999); United States v. Bostic, 168 F.3d 718 (4th Cir.1999); United States v. Cunningham, 161 F.3d 1343 (11th Cir.1998); United States v. Wilson, 159 F.3d 280 (7th Cir.1998); United States v. Pierson, 139 F.3d 501 (5th Cir.1998). C. Nevertheless, Appellant argues that the Court’s recent decisions in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), support his contention that the statute is unconstitutional under the Commerce" } ]

[ { "docid": "22057303", "title": "", "text": "credibility choices made in support of the verdict.” Id. (citations omitted). 2. Analysis For a violation of 18 U.S.C. § 922(g), the government must prove that: (1) the defendant previously had been convicted of a felony; (2) that the defendant possessed a firearm; and (3) that the firearm traveled in or affected interstate commerce. See United States v. Gresham, 118 F.3d 258, 265 (5th Cir.1997) (citations omitted). Here Washington challenges the third prong. Washington concedes that the firearms at issue were manufactured outside of Texas and, therefore, traveled interstate prior to him possessing them in Texas. He argues, however, that proof, that the firearm previously crossed state lines is insufficient to meet the interstate commerce element of § 922(g)(1). In support of his position, Washington cites two Supreme Court cases: United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). In United States v. Daugherty, this circuit upheld a conviction of a felon in possession of a firearm after the government proved that the firearm at issue was manufactured in Egypt and imported through Tennessee before reaching Texas. 264 F.3d 513, 514 (5th Cir.2001), cert. denied, 534 U.S. 1150, 122 S.Ct. 1113, 151 L.Ed.2d 1007 (2002). The defendant argued that “the government failed to prove that he possessed a firearm ‘in and affecting’ interstate commerce” — essentially the same argument that Washington makes here. Id. at 518. The Daugherty court stated that “we repeatedly have said that evidence similar to that presented in Daugherty’s case suffices to maintain a § 922(g)(1) conviction.” Id. (citing United States v. Kuban, 94 F.3d 971 (5th Cir.1996)(affirming a § 922(g)(1) conviction where the weapon was manufactured in Belgium and possessed in Texas); United States v. Rawls, 85 F.3d 240 (5th Cir.1996) (affirming a § 922(g)(1) conviction where the weapon was manufactured in Massachusetts and possessed in Texas)). “Thus, his constitu-tionaT challenge to § 922(g) fails, because ‘the constitutionality of § 922(g) is not open to question.’ ” Id. (quoting United States v. DeLeon, 170 F.3d" }, { "docid": "17243230", "title": "", "text": "substantial relationship to interstate commerce? Brownlee also contends that his federal prosecution for the crimes of carjacking (18 U.S.C. § 2119), using a firearm in relation to a federal crime of violence (18 U.S.C. § 924(c)(l)(A)(ii)), and possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1)), was unconstitutional. More specifically, he argues that the statutes upon which his convictions are based are unconstitutional, both facially and as applied, because the convictions were for intrastate crimes, and thus those statutes exceed the regulatory authority granted Congress under the Constitution’s Commerce Clause. U.S. Const. art. I, § 8, cl. 3. Brownlee concedes that separate panels of our Court have previously addressed the constitutionality of the felon-in-possession statute, United States v. Singletary, 268 F.3d 196 (3d Cir.2001), and the carjacking statute, United States v. Bishop, 66 F.3d 569 (3d Cir.1995), and found them to be constitutional. He nonetheless requests reconsideration of those issues. In Singletary, a panel of this Court scrutinized the same line of Commerce Clause decisions of the Supreme Court to which Brownlee directs our attention, and ruled that § 922(g) was constitutional. See 268 F.3d at 200-205 (analyzing Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000); United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)). A similar analysis was provided — albeit without the benefit of the Jones and Morrison decisions — by the Bishop panel, which held that § 2119 was constitutional. In light of the binding effect we give to precedential opinions of panels of this Court, and because we discern no principled distinction between the statutes already ruled on by our Court and § 924(c)(l)(A)(ii), we must reject Brownlee’s argument and hold that the statutes he challenges survive constitutional scrutiny. See 3d Cir. Internal Operating P. 9.1. III. Conclusion We affirm the District Court’s ruling that the eyewitness identifications were reliable and admissible at trial" }, { "docid": "23087951", "title": "", "text": "worded decision, and we do not address the contention that its recognition of an individual right to keep and bear arms is dicta. For our purposes, Emerson itself explained that the individual right it recognized does not preclude the government from prohibiting the possession of firearms by felons: Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country. Indeed, Emerson does not contend, and the district court did not hold, otherwise. As we have previously noted, it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms. Id. at 261. Emerson also discusses authority that legislative prohibitions on the ownership of firearms by felons are not considered infringements on the historically understood right to bear arms protected by the Second Amendment. Id. at 226 n. 21. Section 922(g)(1) does not violate the Second Amendment. B.Commerce Clause Darrington argues that section 922(g)(1) exceeds congressional power to regulate interstate commerce because the statute does not require a “substantial” effect on interstate commerce. We rejected a commerce clause challenge to section 922(g)(1) in United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.2001). We reaffirmed that “ ‘the constitutionality of § 922(g) is not open to question.’ ” Id. (quoting United States v. De Leon, 170 F.3d 494, 499 (5th Cir.1999)). Daugherty rejected Darringtoris argument that section 922(g)(1) cannot pass constitutional muster in light of the Supreme Court’s decisions in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), and United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Daugherty, 264 F.3d at 518. See also United States v. Rawls, 85 F.3d 240, 242 (5th Cir.1996). As in the pending case," }, { "docid": "22890757", "title": "", "text": "Clause to make such activity criminal. He concedes that we have held that 18 U.S.C. § 922(g)(8), interdicting possession of firearms by persons against whom certain domestic violence restraining orders are pending, is constitutional under the Commerce Clause, notwithstanding the Supreme Court’s decisions in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), confining Congress’s powers under the Clause. See United States v. Jones, 231 F.3d 508, 514-15 (9th Cir.2000). Moreover, since Rousseau has filed his brief, we have relied on our opinion in Jones and have held that Congress lawfully exercised its authority under section 922(g)(1), the precise statute in issue. See United States v. Davis, 242 F.3d 1162, 1163 (9th Cir.2001). In the circumstances we hold that section 922(g)(1) is constitutional on its face and as applied. Rousseau raises the alternative argument that section 922(g)(1) is unconstitutional as applied because the government did not prove his possession of a firearm had an “individualized substantial effect on commerce.” Br. at 46. In United States v. Hanna, 55 F.3d 1456, 1462 (9th Cir.1995), however, we held that a past connection to interstate commerce is sufficient. Adopting the test set forth by the Supreme Court in Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), with respect to a predecessor statute to section 922(g)(1), we have held there need be only a “ ‘minimal nexus that the firearm have been, at some time, in interstate commerce.’ ” Hanna, 55 F.3d at 1462 (quoting Scarborough, 431 U.S. at 575, 97 S.Ct. at 1969). In this case there was evidence that the firearm seized on January 26, 1999, in Oregon had been manufactured in Spain and imported through New Jersey, and the firearm seized on August 13, 1999, in Oregon had been manufactured in New Hampshire. Therefore, section 922(g)(1) is not unconstitutional as applied to Rousseau. For the same reason, Rousseau’s additional arguments that the government failed to prove he violated section 922(g)(1) and that the district court" }, { "docid": "6797710", "title": "", "text": "concedes that we have previously rejected a Commerce Clause challenge to section 922(o). See United States v. Kenney, 91 F.3d 884 (7th Cir.1996). He maintains, however, that Ken-ney is now in conflict with the Supreme Court’s more recent ruling in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and that we must therefore reverse his convictions on Counts 1 and 3. In Morrison, the Supreme Court struck down a section of the Violence Against Women Act that created a federal civil remedy for gender-motivated violence because gender-motivated violence is not an activity that substantially affects interstate commerce. Nothing in Morrison casts doubt on the validity of section 922(o)(1), and our analysis in Ken-ney remains sound. See also United States v. Haney, 264 F.3d 1161, 1166-71 (10th Cir.2001), cert. denied, - U.S.-, 122 S.Ct. 2362, 153 L.Ed.2d 183 (2002) (upholding section 922(o) against a post-Morrison Commerce Clause challenge). Seeing no reason to doubt our earlier analysis and no reason to split from the well-reasoned decision of our sister circuit, we affirm Fleischli’s convictions on Counts 1 and 3. D. Fleischli challenges his conviction under 18 U.S.C. § 922(g)(1), the “felon in possession” statute, because the government was not required to prove that his possession of firearms substantially affected interstate commerce. Again Fleischli acknowledges that we have rejected an identical argument in the past. See Gillespie, 185 F.3d at 705. This time he maintains that Gillespie cannot stand in light of Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). But we have rejected that argument as well, and Fleischli offers us no reason to reconsider our earlier opinions. See United States v. Mitchell, 299 F.3d 632, 634-35 (7th Cir.2002); United States v. Wesela, 223 F.3d 656, 660 (7th Cir.2000), cert. denied, 531 U.S. 1174, 121 S.Ct. 1145, 148 L.Ed.2d 1008 (2001). See also United States v. Singletary, 268 F.3d 196, 205 (3rd Cir.2001), cert. denied, — U.S.-, 122 S.Ct. 1450, 152 L.Ed.2d 391 (2002) (collecting cases). E. We next review Fleischli’s claim that section 922(g)(1) does not extend to firearms" }, { "docid": "1008920", "title": "", "text": "... is similar to that on a ruling on a motion by the government to reopen, traditionally a discretionary matter for the district court.” 915 F.2d at 876 (citing Blankenship, 775 F.2d at 740-41). For the reasons articulated, we will remand to the District Court to evaluate the government’s request to reopen the suppression hearing in light of the considerations expressed herein. B. Validity of Section 922(g) In Coward’s 'brief, he argued that possession of a firearm that has previously traveled in interstate commerce does not have a substantial relation to and/or impact on interstate commerce and thus falls outside of Congress’ authority under the Commerce Clause, U.S. Const., art. I, § 8, cl. 3. On that basis, Coward argued that 18 U.S.C. § 922(g) was not constitutionally applied to him. However, his brief was written without the benefit of this court’s recent decision in United States v. Singletary, 268 F.3d 196 (3d Cir.2001). In Singletary, we examined this precise issue in detail and held that “proof ... that the gun had traveled in interstate commerce, at some time in the past, was sufficient to satisfy the interstate commerce element” of the statute. Id. at 205. Taking note of our prior decision in United States v. Gateward, 84 F.3d 670 (3d Cir.1996), we scrutinized the same line of Commerce Clause decisions of the Supreme Court to which Coward directed our attention and ruled that § 922(g) was constitutional. See id. at 200-205 (analyzing Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Scarborough v. United States, 431 U.S. 563, 564, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)). In light of the binding effect we give to precedential opinions of panels of this court, we reject Coward’s challenge to § 922(g). See 3d Cir. Internal Operating P. 9.1. Despite the rejection of identical constitutional challenges in Singletary, Coward maintains that Singletary did not address his challenges based on" }, { "docid": "12678793", "title": "", "text": "effect on interstate commerce. All that is required is some effect on interstate commerce.” Marino argues that under the Supreme Court’s rulings in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), the government had to show that the enterprise’s activity had a substantial effect on interstate commerce. That is not so. In Lopez, the Gun-Free School Zones Act, 18 U.S.C. § 922(q) (Supp. II 1990) (amended 1994), was struck down because it did not have a “jurisdictional element which would ensure, through case-by-case inquiry, that the [activity] in question affect[ed] interstate commerce.” Lopez, 514 U.S. at 561, 115 S.Ct. 1624. In Morrison the Supreme Court invalidated the civil remedy provided by the Violence Against Women Act, 42 U.S.C. § 13981, for similar reasons: “[l]ike the Gun-Free School Zones Act at issue in Lopez, § 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ power to regulate inter state commerce.” Morrison, 529 U.S. at 613, 120 S.Ct. 1740. In contrast, RICO contains a jurisdictional element: “It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate ... in the conduct of such enterprise’s affairs.... ” 18 U.S.C. § 1962(c) (emphasis added). A number of circuit courts have held, post-Lopez, that the government does not need to show that the RICO enterprise’s effect on interstate commerce is substantial. United States v. Riddle, 249 F.3d 529, 537 (6th Cir.) (holding that “RICO enterprise’s necessary relationship to interstate commerce” is still “de minimis”), cert. denied, — U.S. -, 122 S.Ct. 292, 151 L.Ed.2d 216 (2001); United States v. Juvenile Male, 118 F.3d 1344, 1347 (9th Cir.1997) (“[AJI that is required to establish federal jurisdiction in a RICO prosecution is a showing that the individual predicate racketeering acts have a de minimis impact on interstate commerce.”); United States v. Miller, 116 F.3d 641, 674 (2d Cir.1997) (holding" }, { "docid": "22053163", "title": "", "text": "offense.” The court adopted the PSR and sentenced Alcantar to 63 months of imprisonment. Alcantar timely appealed. DISCUSSION I. Constitutionality of § 922(g)(1) Alcantar argues that his conviction should be vacated because § 922(g)(1) exceeds Congress’s authority under the Commerce Clause. In United States v. Wallace, 889 F.2d 580, 583 (5th Cir.1989), we concluded that § 922(g)(1) is a valid exercise of Congress’s authority under the Commerce Clause. Following Wallace, we have consistently upheld the constitutionality of § 922(g)(1), including after the Supreme Court’s decisions concerning Congress’s Commerce Clause authority in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). See United States v. Schmidt, 487 F.3d 253, 255 (5th Cir.2007) (holding that the Court’s decisions in Lopez, Jones, and Morrison “do not alter th[e] conclusion” that § 922(g)(1) is constitutional); United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.2001) (“[T]he constitutionality of § 922(g) is not open to question.”); United States v. De Leon, 170 F.3d 494, 499 (5th Cir.1999) (“This court has repeatedly emphasized that the constitutionality of § 922(g)(1) is not open to question.”). Alcantar argues on appeal that the Supreme Court’s decision in National Federation of Independent Business v. Sebelius, — U.S.-, 132 S.Ct. 2566, 2587, 183 L.Ed.2d 450 (2012), overrules our longstanding precedent upholding § 922(g)(1). Under our rule of orderliness, only an intervening change in the law (such as by a Supreme Court case) permits a subsequent panel to decline to follow a prior Fifth Circuit precedent. Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir.2008) (“It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.”) Such an intervening change in the law must be unequivocal, not a mere “hint” of how the" }, { "docid": "3965623", "title": "", "text": "interstate commerce and therefore 18 U.S.C. § 922(g)(1) exceeds Congress’ power and is unconstitutional. Mr. Thompson concedes that “this issue has been decided against him.” Appellant’s Br. at 23 (citing Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), and United States v. Harris, 325 F.3d 865, 873-74 (7th Cir. 2003)). He finally asserts that the Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), employed language that indicates that his possession of the ammunition was not economic activity that affects interstate commerce. Mr. Thompson, however, continues to “raise[ ] this issue so he may preserve his rights if the Supreme Court decides to revisit” its earlier decision. Appellant’s Br. at 23. We agree with Mr. Thompson that the issue of whether 18 U.S.C. § 922(g)(1) exceeds Congress’ power to regulate interstate commerce has been decided against him. Indeed, we have considered and rejected the issue of whether the Supreme Court’s holding in Lopez renders the statute unconstitutional. See, e.g., United States v. Fleischli, 305 F.3d 643, 653 (7th Cir.2002) (rejecting a similar commerce clause argument based on Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000)); United States v. Lemons, 302 F.3d 769, 771-73 (7th Cir.2002) (rejecting similar argument based on Lopez); United States v. Mitchell, 299 F.3d 632, 633-35 (7th Cir.2002) (rejecting commerce clause argument based on Lopez, United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones); United States v. Wesela, 223 F.3d 656, 659-60 (7th Cir.2000) (same); United States v. Williams, 128 F.3d 1128, 1133-34 (7th Cir.1997) (rejecting commerce clause challenge based on Lopez ). Conclusion For the foregoing reasons, we affirm the judgment of the district court. Affirmed . Although the details of the warrant are not entirely clear, on cross-examination at trial Shinnamon testified that the warrant was issued because Mr. Thompson pointed a firearm at her. The Government further explained at oral argument that this altercation occurred on October 24, 2001. . Inexplicably, after the bullets were seized the" }, { "docid": "22787074", "title": "", "text": "closet behind other items, and five locked in a safe; it is unlikely that the woman encountered in Gallimore’s house acquired all seven firearms and distributed them around the property in this fashion in under 24 hours. In light of these circumstances, the evidence was sufficient to prove constructive possession. Cf. Jones, 204 F.3d at 543-44; United States v. Lawson, 682 F.2d 1012, 1017 (D.C.Cir.1982) (upholding conviction for possession of marijuana found in defendant’s apartment based on her presence in, and longtime occupancy of, the apartment, even though officers who found marijuana were admitted to the apartment by a codefendant while the defendant was in the bathtub). B. Gallimore’s second claim arises from two recent Supreme Court decisions concerning Congress’ power to regulate interstate commerce. See Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000); United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Gallimore contends that these decisions require proof of a greater nexus between firearms possession and interstate commerce than was demonstrated here. We disagree. Section 922(g) makes it unlawful for people in specified categories “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Under existing circuit precedent, the Government may establish the requisite interstate commerce nexus by showing that a firearm was manufactured outside the state where the defendant possessed it. See United States v. Nathan, 202 F.3d 230, 234 (4th Cir.), cert. denied, 529 U.S. 1123, 120 S.Ct. 1994, 146 L.Ed.2d 819 (2000). There have been many constitutional challenges to § 922(g) since the Supreme Court decided United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In Lopez, the Court held that a statute prohibiting possession of a firearm within a school zone exceeded Congress’ power under the Commerce Clause because it “neither regulate[d] a commercial activity nor contain[ed] a requirement that the possession be connected in any way to interstate commerce.” Lopez," }, { "docid": "9846659", "title": "", "text": "violation of 18 U.S.C. § 922(g)(1). At trial, the government and Santiago stipulated that the gun admitted into evidence was a .25 caliber semi-automatic pistol manufactured in Italy. The parties also stipulated that prior to July 21, 1999, Santiago already had been convicted of a felony punishable by imprisonment for a term of more than one year. After a short trial, the jury returned with a guilty verdict. The District Court sentenced Santiago to 68 months’ imprisonment, three years’ supervised release, and a $100 special assessment. DISCUSSION Santiago contends that the felon-in-possession statute cannot constitutionally be applied to the conduct for which he was convicted. As he acknowledges, we already upheld § 922(g) against Commerce Clause challenge shortly after the Supreme Court’s decision in Lopez. See Sorrentino, 72 F.3d at 296 (holding that because § 922(g) requires a felon to possess a firearm “in or affecting commerce,” it contains “a legitimate nexus with interstate commerce” and thus “avoids the constitutional deficiency identified in Lopez ”); see also United States v. Hernandez 85 F.3d 1023, 1030-31 (2d Cir.1996) (applying Sorrentino ). Santiago argues, however, that the Supreme Court’s recent decisions in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), have altered the settled law in this Circuit concerning the permissible scope of § 922(g) under the Constitution. Santiago did not advance his challenge to § 922(g) before the District Court. Nevertheless, he urges us to review his conviction for plain error pursuant to Rule 52(b) of the Federal Rules of Criminal Procedure. Fed.R.Crim.P. 52(b); see United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994), cert. denied, 513 U.S. 1198, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995). Rule 52(b) places three limits on appellate authority to notice errors not preserved at trial: First, there must be “error,” or deviation from a legal rule which has not been waived. Second, the error must be “plain,” which" }, { "docid": "23263849", "title": "", "text": "Second Amendment does not confer an individual right to possess arms), cert. denied 540 U.S. 1046, 124 S.Ct. 803, 157 L.Ed.2d 693 (2003); see also United States v. Everist, 368 F.3d 517, 519 (5th Cir.2004) (rejecting a Second Amendment challenge to the felon-firearm possession statute and holding that § 922(g)(1) “represents a limited and narrowly tailored exception to the freedom to possess firearms, reasonable in its purposes and consistent with the right to bear arms protected under the Second Amendment”). Defendant’s argument that the jurisdictional element of § 922(g) requires proof that the firearm either recently moved across state lines or that defendant’s conduct had an actual economic impact likewise lacks merit: “A one-time past connection to interstate commerce is sufficient under § 922(g)(1).” United States v. Beasley, 346 F.3d 930, 936 (9th Cir.2003); see also United States v. Casterline, 103 F.3d 76, 77 (9th Cir.1996). Defendant relies on United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), characterizing those cases as fatally undermining the model instruction’s approach to the jurisdictional element. This court has, however, expressly and repeatedly rejected defendant’s reading of the law, even after Morrison and Lopez were decided. See, e.g., United States v. Rousseau, 257 F.3d 925, 932-33 (9th Cir.2001) (finding past connection to interstate commerce sufficient for § 922(g) conviction). The evidence in this case was undisputed that defendant’s guns were manufactured in Massachusetts and found in California. Consequently, the district court’s jury instruction was proper and the evidence sufficient to sustain defendant’s conviction on count two. AFFIRMED. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Officers later released the girlfriend as she did not appear to be involved in criminal activity. . At trial, Benzinger testified that his reasons for again advising defendant of his Miranda rights was to capture it on audio tape to create a permanent record and to prevent any ambiguity as to whether defendant understood his rights. . FRE 704(b) provides: No expert" }, { "docid": "22616776", "title": "", "text": "handguns out of the hands of persons who have been convicted of a felony, even if those persons satisfactorily completed community supervision.” Id. That rationale also applies here, because the Texas Legislature has passed laws designed to keep firearms out of the hands of convicted felons. See § 46.04. Both § 46.04 and the CHA demonstrate the power of the legislature “to regulate the wearing of arms, with a view to prevent crime.” Tex. Const, art. I, § 3. Thus, Tune provides strong, analogous support for affirming Daugherty’s conviction. Even without Tune, however, Podia and its progeny are controlling. Under Texas law, Daugherty remained convicted even after successfully completing probation. Consequently, he is subject to the penalties that state law imposes on convicted felons. Section 46.04 prohib its felons from possessing firearms outside their homes. Accordingly, Texas statutory law activated the “unless clause” in § 921(a)(20) and prevents Daugherty from possessing a firearm. IV. Daugherty avers that the government failed to prove that he possessed a firearm “in and affecting” interstate commerce, as required by § 922(g)(1). See Gresham, 118 F.3d at 265 (citing Fields, 72 F.3d at 1211). He claims that this case is “a classic example of a purely local offense.” In evaluating a Commerce Clause challenge under United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), however, we repeatedly have said that evidence similar to that presented in Daugherty’s case suffices to maintain a § 922(g)(1) conviction, and Daugherty admits as much. Thus, his constitutional challenge to § 922(g) fails, because “the constitutionality of § 922(g) is not open to question.” United States v. DeLeon, 170 F.3d 494, 499 (5th Cir.), cert. denied, 528 U.S. 863, 120 S.Ct. 156, 145 L.Ed.2d 133 (1999). Daugherty urges us to reconsider the interstate commerce element of § 922(g)(1) in light of two recent, intervening decisions: United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). Both, however, are distinguishable from the present case, because a plain" }, { "docid": "22890756", "title": "", "text": "on the latter count. But in its charge, the district court specifically instructed the jury that it was obliged to consider the counts separately. Consequently, inasmuch as juries are presumed to follow their instructions, see Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 939, 122 L.Ed.2d 317 (1993), when a court charges the jury on the elements of each count separately, its action militates against a finding of prejudice. See United States v. Matta-Ballesteros, 71 F.3d 754, 771 (9th Cir.1995). After a careful review, we have concluded that the joinder did not prejudice Rousseau as we see no reason to believe that the jury would not have considered the two counts discretely as the court instructed. We also point out, though our conclusion does not depend on this observation, that the offenses here did not involve highly charged inflammatory situations in which arguably a joinder of offenses might be prejudicial. Rousseau also contends that his conviction for firearm possession by a felon is invalid because Congress lacks the authority under the Commerce Clause to make such activity criminal. He concedes that we have held that 18 U.S.C. § 922(g)(8), interdicting possession of firearms by persons against whom certain domestic violence restraining orders are pending, is constitutional under the Commerce Clause, notwithstanding the Supreme Court’s decisions in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), confining Congress’s powers under the Clause. See United States v. Jones, 231 F.3d 508, 514-15 (9th Cir.2000). Moreover, since Rousseau has filed his brief, we have relied on our opinion in Jones and have held that Congress lawfully exercised its authority under section 922(g)(1), the precise statute in issue. See United States v. Davis, 242 F.3d 1162, 1163 (9th Cir.2001). In the circumstances we hold that section 922(g)(1) is constitutional on its face and as applied. Rousseau raises the alternative argument that section 922(g)(1) is unconstitutional as applied because the government did not prove his possession of a firearm had an “individualized" }, { "docid": "23115911", "title": "", "text": "PER CURIAM: William Andrew Scott appeals his conviction for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) . Scott raises only one issue on appeal. He argues that the felony-in-possession statute is an invalid exercise of Congress’ Commerce Clause power because possession of a firearm by a convicted felon is not conduct which has a substantial impact on interstate commerce. In support of his position, he relies on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). For the reasons stated below, we reject his constitutional challenge and affirm his conviction under 18 U.S.C. § 922(g)(1). We review the constitutionality of statutes de novo. See United States v. Reynolds, 215 F.3d 1210, 1212 (11th Cir.2000). The Commerce Clause of the United States Constitution states in pertinent part: “The Congress shall have the power ... [t]o regulate Commerce with foreign Nations, and among the several states.” U.S. Const. art. 1, § 8. Under the framework established by United States v. Lopez, Congress permissibly may regulate three broad categories of activity under the Commerce Clause. First, Congress may regulate the use of the channels of interstate commerce. Lopez, 514 U.S. at 558, 115 S.Ct. at 1629. Second, the Commerce Clause empowers Congress to regulate and protect the instrumentalities of interstate commerce, or persons or things in inter state commerce, even if the threat may derive only from intrastate activities. See id., 115 S.Ct. at 1629. Lastly, Congress’ commerce power includes the authority to regulate activities with a “substantial relation to interstate commerce.” Id. at 558-59, 115 S.Ct. at 1629-30. When Lopez was convicted of violating the Gun-Free School Zones Act, 18 U.S.C. § 922(q), the Supreme Court reversed his conviction and invalidated the statute, reasoning that § 922(q) was an invalid exercise of Congress’ Commerce Clause power. Lopez identified at least three considerations in analyzing 922(q). First, the Court found that" }, { "docid": "22616777", "title": "", "text": "§ 922(g)(1). See Gresham, 118 F.3d at 265 (citing Fields, 72 F.3d at 1211). He claims that this case is “a classic example of a purely local offense.” In evaluating a Commerce Clause challenge under United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), however, we repeatedly have said that evidence similar to that presented in Daugherty’s case suffices to maintain a § 922(g)(1) conviction, and Daugherty admits as much. Thus, his constitutional challenge to § 922(g) fails, because “the constitutionality of § 922(g) is not open to question.” United States v. DeLeon, 170 F.3d 494, 499 (5th Cir.), cert. denied, 528 U.S. 863, 120 S.Ct. 156, 145 L.Ed.2d 133 (1999). Daugherty urges us to reconsider the interstate commerce element of § 922(g)(1) in light of two recent, intervening decisions: United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). Both, however, are distinguishable from the present case, because a plain jurisdictional element exists in § 922(g), and there is stipulated evidence showing that the gun traveled in interstate commerce. Neither Jones nor Morrison affects or undermines the constitutionality of § 922(g). V. Because the Texas Supreme Court has not addressed the first issue in this case, we must “decide the case as would an intermediate appellate court of the state in question....” Jefferson v. Lead Indus. Ass’n, Inc., 106 F.3d 1245, 1247 (5th Cir.1997) (per curiam) (quoting DiPascal v. N.Y. Life Ins. Co., 749 F.2d 255, 260 (5th Cir.1985)). There is substantial support in Texas law for the proposition that persons convicted of a felony are still considered convicted felons even after they successfully complete community supervision. This circuit has repeatedly reached that conclusion, and Daugherty cites no cases in opposition. There was a sufficient nexus between Daugherty’s possession of the weapon and interstate commerce. AFFIRMED. . The order read, in pertinent part: \"and it further appearing to the satisfaction of the Court that the period of probation herein has expired, and that all conditions" }, { "docid": "23087952", "title": "", "text": "by the Second Amendment. Id. at 226 n. 21. Section 922(g)(1) does not violate the Second Amendment. B.Commerce Clause Darrington argues that section 922(g)(1) exceeds congressional power to regulate interstate commerce because the statute does not require a “substantial” effect on interstate commerce. We rejected a commerce clause challenge to section 922(g)(1) in United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.2001). We reaffirmed that “ ‘the constitutionality of § 922(g) is not open to question.’ ” Id. (quoting United States v. De Leon, 170 F.3d 494, 499 (5th Cir.1999)). Daugherty rejected Darringtoris argument that section 922(g)(1) cannot pass constitutional muster in light of the Supreme Court’s decisions in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), and United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Daugherty, 264 F.3d at 518. See also United States v. Rawls, 85 F.3d 240, 242 (5th Cir.1996). As in the pending case, the interstate commerce requirement was met in Daugherty because the gun traveled in interstate commerce. Daugherty, 264 F.3d at 518. Insofar as Darrington suggests that Emerson somehow upsets our prior holdings in Daugherty and other cases, one panel of this court cannot overrule the decision of another panel. FDIC v. Dawson, 4 F.3d 1303, 1307 (5th Cir.1993). Emerson itself recognized that it could not overrule Fifth Circuit precedent in this regard. Emerson, 270 F.3d at 217. Alternatively, Darrington argues that even if the statute is facially constitutional, his indictment was defective for failing to allege that his specific offense had a substantial effect on interstate commerce. We rejected this argument in United States v. Gresham, 118 F.3d 258, 264-65 (5th Cir.1997). He also argues that the factual basis for his plea was insufficient because the evidence established only that the firearm was manufactured in California and traveled across state lines at some unspecified point in the past. We have also rejected this argument. United States v. Fitzhugh, 984 F.2d 143, 145-46 (5th Cir.1993). C. Tenth" }, { "docid": "22113602", "title": "", "text": "Clause cast doubt on the continuing vitality of Scarborough. Those decisions are United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). In Lopez, the Supreme Court struck down the “Gun-Free School Zone Act,” 18 U.S.C. § 922(q)(l)(a), holding it exceeded Congressional power under the Commerce Clause because the Act did not regulate a commercial activity (possession of a gun near a school) nor did it contain a requirement the possession of a firearm in a school zone be connected in any way to interstate commerce. Lopez, 514 U.S. at 567-68, 115 S.Ct. 1624. Lopez recognized three broad areas which Congress may regulate under the Commerce Clause: 1) channels of interstate commerce; 2) instrumentalities of interstate commerce, or persons and things in interstate commerce, even though the threat may only come from intrastate activities; and 3) activities that substantially affect interstate commerce. Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624. This Court’s decision in United States v. Bolton, 68 F.3d 396 (10th Cir.1995) (holding § 922(g)(1) a valid exercise of the commerce power because it required the firearm to have traveled in interstate commerce), foreclosed any appeal of Mr. Dorris’ conviction based solely on the Lopez decision. We also examined § 922(g)(l)’s application post-Lopez in United States v. Farnsworth, 92 F.3d 1001 (10th Cir.1996), where the appellant argued the government must show the possession of the firearm had substantial effect on interstate commerce. We rejected that argument, holding an individualized showing of substantial effect on commerce was unnecessary. Farnsworth, 92 F.3d at 1006. Nevertheless, Mr. Dorris argues the effect of Lopez, when combined with Morrison and Jones, calls for us to overturn our decisions in Bolton and Farnsworth. In Morrison, the Court struck down the civil remedy provision of the Violence Against Women Act (VAWA), 42 U.S.C. 13981(b), holding it exceeded Congressional authority to regulate interstate commerce. Morrison, 120 S.Ct. at 1754. In so doing, the Court" }, { "docid": "10826133", "title": "", "text": "commercial activity which has a substantial impact on interstate commerce before Congress may criminalize it pursuant to the Commerce Clause. This point is driven home further, he suggests, by the Court’s opinions in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), which found that the Violence Against Women Act, 42 U.S.C. § 13981, exceeded Congress’s Commerce Clause authority, and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), which construed the federal arson statute, 18 U.S.C. § 844(i), not to reach owner-occupied homes that are not used for any commercial purpose. Yet, in the course of finding the Gun-Free School Zones Act unconstitutional, Lopez noted, inter alia, that the statute lacked a jurisdictional element “which would ensure, though case-by-case inquiry, that the firearm possession in question affects interstate commerce.” 514 U.S. at 561, 115 S.Ct. at 1631. By way of contrast, the Court cited the forerunner to section 922(g), which Bass had construed to require proof of just that kind of nexus to interstate commerce. Id. at 561-62, 115 S.Ct. at 1631. Because 922(g) itself contains a jurisdictional element, and because the Supreme Court in Bass and Scarborough suggested that prior movement of the firearm in interstate commerce would suffice to meet that element, we have, in the wake of Lopez, repeatedly rejected Commerce Clause challenges to application of the felon-in-possession statute. See, e.g., United States v. Mitchell, 299 F.3d 632 (7th Cir.2002); United States v. Wesela, 223 F.3d 656, 659-60 (7th Cir.2000), cert. denied, 531 U.S. 1174, 121 S.Ct. 1145, 148 L.Ed.2d 1008 (2001); Lewis, 100 F.3d at 50-53; United States v. Bell, 70 F.3d 495, 497-98 (7th Cir.1995). Lemons argues that Lopez effected far more of a sea change in the Supreme Court’s Commerce Clause jurisprudence than we have been willing to acknowledge. Within the Lopez framework, he reasons, Congress might be able to reach intrastate firearms possession when that possession has a commercial character and also has an explicit connection with or effect on interstate commerce. But section 922(g)(1), to the extent it merely requires a" }, { "docid": "3808978", "title": "", "text": "68 F.3d 101, 104 n. 1 (5th Cir.1995), we reject ed the notion that Staples nullifies Dancy with respect to the mens rea requirement of § 922(g)(1). “[Ujnless the text of the statute dictates a different result, the term ‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.” Bryan, 524 U.S. at 193, 118 S.Ct. 1939. At issue in Bryan was whether the term “willful” in 18 U.S.C. § 924(a)(1)(D) requires specific, or merely general, intent. The Bryan Court was not confronted with whether to extend a mens rea requirement to a defendant’s felony status. In any event, Schmidt does not claim ignorance of his 1985 Texas conviction for burglary of a vehicle, and any ignorance he may have had with respect to whether, in light of the 1994 Texas amendments, that conviction renders him a person “who has been convicted in any court of a crime punishable by imprisonment for term exceeding one year” for purposes of § 922(g)(1) as applied to his charged 2005 firearm possession, would be merely ignorance of the law. IV. Schmidt urges that § 922(g)(1) is unconstitutional on its face, and as applied to him, because it does not require a “substantial” effect on interstate commerce. He bases this on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Our precedent forecloses this argument: “[T]he constitutionality of § 922(g)(1) is not open to question.” United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.2001). Lopez, Jones, and Morrison do not alter this conclusion. Id. The judgment of conviction is AFFIRMED. . See also Davila v. State, 930 S.W.2d 641, 654 (Tex.App.1996) (“In amending the Penal Code, the Legislature specifically provided that an offense committed before the effective date of the amendments is governed by the law in effect when the offense was committed.”). . See, e.g., Delgado v. State, 908 S.W.2d 317, 318-19 (Tex.App. — El" } ]

[ { "docid": "10913489", "title": "", "text": "CLARK, Chief Judge: Residents of the Parish of Orleans, Louisiana, filed a class action against the New Orleans Parish Levee Board (Levee Board), the City of New Orleans, and the State of Louisiana in the state courts of Louisiana. They alleged that the Levee Board had negligently failed to close the flood gates on the Industrial Canal, resulting in flood damage to their property. The Levee Board filed a third-party complaint against the National Weather Service, an agency of the United States, alleging that it negligently had failed to predict the weather and tidal conditions accurately and to warn the Levee Board. The United States removed the entire case to the United States District Court pursuant to 28 U.S.C. § 1441(a). The district court dismissed the third-party complaint against the National Weather Service for lack of subject matter jurisdiction, holding that because the Federal Tort Claims Act vested exclusive jurisdiction in the district court, 28 U.S.C. § 1346(b), the Louisiana court had no jurisdiction over the federal agency, and the district court acquired no derivative jurisdiction upon removal. The main demand was remanded to state court. Spencer v. New Orleans Levee Board, 563 F.Supp. 1352 (E.D.La. 1983). That judgment is not appealed. Upon remand, the Levee Board amended its third-party complaint, reiterating the original third-party allegations against the National Weather Service and adding David Barnes, the area manager of the National Weather Service at the time of the flooding, as another negligent third-party defendant. The National Weather Service joined in Barnes’ petition for removal to federal court. Barnes also removed to federal court two related cases pending against him in state court. The National Weather Service was not named as third-party defendant in these two related cases. The district court dismissed the complaints against Barnes in all three cases on the grounds that, as a federal official, he enjoyed absolute immunity from civil suit for the discretionary actions taken in the course of his employment. In the instant action, the court also ruled that it was without continuing jurisdiction over the National Weather Service, which it had previously dismissed on" } ]

[ { "docid": "3185676", "title": "", "text": "founded upon 28 U.S.C. § 1346(a)(2), which is limited to suits against the United States “founded . upon . . . any Act of Congress . .” Like jurisdiction founded upon the federal question statute, 28 U.S.C. § 1331, which provides for jurisdiction over any action “arispng] under” the laws of the United States, 28 U.S.C. § 1346(a)(2) predicates original federal jurisdiction on a right created by a federal statute. Section 659 does not create a right to garnishment, but rather, simply abrogates the Government’s immunity to the realization of this right if such a right exists under state law. To prevail ultimately in this action, plaintiff need not advert to any provision of federal law. Rather, she must establish a valid divorce decree entered by a state court, and a right to garnishment, dictated by the Texas Legislature. Section 659 controls only the extent to which plaintiff can now assert her state-created right against the United States as garnishee. For these reasons the Court is of the opinion that it lacks original subject matter jurisdiction and hence § 1441 removal jurisdiction over this cause. III. REMOVAL JURISDICTION UNDER 28 U.S.C. § 1442(a)(1) Although lack of original jurisdiction precludes removal to federal court under 28 U.S.C. § 1441, it does not necessarily follow that this Court is presently without jurisdiction. In some instances including certain actions brought in state court and removed under 28 U.S.C. § 1442(a)(1), removal jurisdiction is broader than original jurisdiction. C. Wright, Federal Courts § 38 (2d ed. 1970). Section 1442(a) provides that: “[a] civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: “(1) any officer of the United States or agency thereof, or person acting under him, for any act under color of such office tf The federal agency in this action is the Department of the Air Force. As named defendant against whom this action was brought it would seem that the" }, { "docid": "8065270", "title": "", "text": "district court lacks subject matter jurisdiction, the case shall be remanded. . We do note, however, that the district court examined 28 U.S.C. § 1330 and determined that it lacked original jurisdiction over the plaintiffs’ claims. Normally, if such a decision had led the court to remand for lack of subject matter jurisdiction, both that decision and the district court’s remand order would have been unreviewable. 28 U.S.C. § 1447(d). In this case, however, the district court determined that it had subject matter jurisdiction over the plaintiffs' claims despite the perceived lack of original jurisdiction. . Section 1441(d) provides: Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown. . The country of Surinam has a majority ownership interest in Surinam Airways, the national airline of Surinam. Nonetheless, Surinam Airways remains a separate legal entity organized under the laws of Surinam. It is neither a citizen of a U.S. State nor an entity created under the laws of a third country. .Because we hold that the district court was required to exercise jurisdiction over the plaintiffs' claims after removal pursuant to 28 U.S.C. § 1441(d), we need not decide whether the district court erred by concluding that the defendants' removal pursuant to § 1441(b) was improper. . In Ortega v. Schramm, 922 F.2d 684 (11th Cir.1991), we found that the words \"any civil action” did not affirmatively grant pendent party jurisdiction in 42 U.S.C. § 1983 cases. Our decision, however, relied largely on the fact that the use of the words \"any civil action” in 28 U.S.C. § 1343(a)(3) were \"expressly limited by section 1343(a)(3) itself, and by the language ‘authorized by law to be" }, { "docid": "16757978", "title": "", "text": "agency. The instant appeal originated as a motion to quash subpoenas issued in a state court action and removed to federal district court under 28 U.S.C. § 1442. In Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir.1989), a private litigant filed a civil action in state court, and sought the testimony of Downie, an EPA employee, regarding information Downie had obtained while investigating a gas leak. Initially, Downie agreed to testify. However, the EPA district counsel later determined that Downie would not be allowed to testify. This determination was based upon an EPA regulation, which provides, among other things, that requests for employees’ testimony and production of documents will be approved “... when clearly in the interests of the EPA.” 40 C.F.R. § 2.401. The district court conducted a hearing, and enforced the subpoenas based upon findings that the information sought was not privileged, that Downie was in the best position to provide the information “which was essential to the fair administration of justice in the civil action,” and that the interference and inconvenience to the EPA would be minimal. Boron Oil Co. v. Downie, 873 F.2d at 68. The district court rejected the defense of sovereign immunity because neither the United States nor the EPA were named parties. This court reversed, holding that a state court, and federal court on removal, lacked jurisdiction to compel a federal employee to testify concerning information acquired during the course of his official duties, in a state court civil action to which the United States was not a party. Boron Oil Co. v. Downie, 873 F.2d at 69-71. It is clear that a federal court’s jurisdiction upon removal under 28 U.S.C. § 1442(a)(1) is derivative of the state court jurisdiction, and where the state court lacks jurisdiction over the subject matter or the parties, the federal court acquires none upon removal, even though in a like suit originally brought in federal court, the court would have had jurisdiction. Boron, 873 F.2d at 70. It is also clear that an action seeking specific relief against a federal official, acting within the scope" }, { "docid": "15038755", "title": "", "text": "U.S. at 192, 116 S.Ct. 2092. Accordingly, we affirm the district court’s conclusion that the North Carolina state court did not have subject-matter jurisdiction over Bullock’s Title VII claim against the U.S. Secretary of Homeland Security. Ill Because the North Carolina state court did not have subject-matter jurisdiction over this case, the district court did not acquire jurisdiction by reason of the case’s removal under 28 U.S.C. § 1442(a) from the state court to federal court. “The jurisdiction of the federal court on removal is, in a limited sense, a derivative jurisdiction. If the state court lacks jurisdiction of the subject-matter or of the parties, the federal court acquires none, although it might in a like suit originally brought there have had jurisdiction.” Lambert Run Coal Co. v. Baltimore & Ohio R.R., 258 U.S. 377, 382, 42 S.Ct. 349, 66 L.Ed. 671 (1922); see also Rodas v. Seidlin, 656 F.3d 610, 614-19 (7th Cir.2011); Palmer v. City Nat’l Bank of W. Va., 498 F.3d 236, 244-46 (4th Cir.2007). Accordingly, under this doctrine of derivative jurisdiction, because the North Carolina state court did not have subject-matter jurisdiction over Bullock’s Title VII claim against the Secretary, neither did the district court after the Secretary removed the action under 28 U.S.C. § 1442(a). We therefore affirm the district court’s order dismissing this case under Federal Rule of Civil Procedure 12(b)(1). AFFIRMED . The dissent characterizes our holding as requiring Congress to “expressly waive exclu sive federal court jurisdiction.” But this confusing characterization of our holding simply misses the point. Following well-established principles, we are requiring Congress to expressly waive sovereign immunity in any forum in which it chooses to allow the federal government to be sued. In disagreeing with our approach and relying on Yellow Freight so heavily, the dissent overlooks the distinction between the questions of whether Congress has made federal jurisdiction over a claim exclusive and whether Congress has waived sovereign immunity. The former is not at issue in this case. . Congress has specifically abrogated the doctrine of derivative jurisdiction in cases removed under 28 U.S.C. § 1441, but it" }, { "docid": "23392949", "title": "", "text": "de novo a district court’s exercise of subject-matter jurisdiction. Green v. Ameritech Corp., 200 F.3d 967, 972 (6th Cir.2000). To assess Gentek’s contention, we begin with first principles of removal jurisdiction. Defendants sued in state court generally may remove the suit to federal district court if the district court has original jurisdiction over the suit. 28 U.S.C. § 1441(a) (“Except as expressly provided by Act of Congress, 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.”). Thus, state-court lawsuits involving federal questions are removable: “Any civil action of which the district courts have original jurisdiction found on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.” 28 U.S.C. § 1441(b). To determine whether a claim arises under federal law, a court, under the well-pleaded-complaint rule, generally looks only to the plaintiffs complaint. Palkow v. CSX Tmnsp., Inc., 431 F.3d 543, 552 (6th Cir.2005) (citing Gully v. First Nat’l Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936) and Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908)). If the complaint relies only on state law, the district court generally lacks subject-matter jurisdiction, and the action is not removable. Id. This makes the plaintiff the master of the complaint; the plaintiff may simply avoid federal jurisdiction by relying exclusively on state law. Caterpillar Inc. v. Williams, 482 U.S. 386, 398-99, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The Supreme Court has developed a limited exception to the well-pleaded-complaint rule: the complete-preemption doctrine. Palkow, 431 F.3d at 552. If Congress intends that a federal statute should completely preempt an area of state law, any complaint alleging claims under that area of state law is presumed to allege a claim arising under federal" }, { "docid": "5097057", "title": "", "text": "Complaint was filed after the case was removed, in their Original Complaint Plaintiffs sought in-junctive relief against the Commissioner of TDHS, and both Defendants have treated Plaintiffs’ failure to name the Commissioner in the Original Complaint as a mistake of form only and have responded to the Original Complaint as though the Commissioner had originally been named therein. Therefore, this Court will also treat the Commissioner as an original Defendant. . 28 U.S.C. § 1441(c) provides in part: If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. . 28 U.S.C. 1441(c) reads as follows: Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates, (emphasis added). . 28 tlS.C. § 1441(a) and (b) provide, in full: (a) Except as otherwise expressly provided by act of Congress, 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. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded. (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if hone of the parties in interest- properly joined and served as defendants is a citizen of the State in which such action is brought. . This jurisdictional bar applies unless the state has waived its immunity or consented to suit against" }, { "docid": "8840691", "title": "", "text": "TUTTLE, Circuit Judge: This is an appeal from the dismissal of a suit originally filed by Eldon Lindsey in the Circuit Court of Marion County, Alabama, against Alabama Telephone Company and Continental Telephone Company of the South. Lindsey alleged, on behalf of a class consisting of all patrons of the two telephone companies, that defendants had wrongfully extracted additional telephone deposits by threatening to suspend service unless such deposits were paid. Defendants petitioned for removal to the United States District Court for the Northern District of Alabama. Following a hearing, the district court concluded that the $10,000 amount-in-controversy requirement under the diversity statute, 28 U.S.C. § 1332, had not been satisfied and accordingly remanded to the state court for lack of subject matter jurisdiction. Following remand, the complaint was amended to include allegations that defendants had wrongfully discontinued services and had misrepresented their authority to charge and receive additional security deposits. Defendants again petitioned for removal, and, over the plaintiff’s objection, the court concluded that it was previously in error in holding that the jurisdictional amount was not present and entered a removal order. Subsequently, the court granted defendant’s motion to dismiss for failure to state a claim upon which relief could be granted. The removal statute provides that: Except as otherwise expressly provided by Act of Congress, 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). One of the jurisdictional requirements in any civil action in which the district court’s original jurisdiction is invoked under the diversity statute is that “the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs.” 28 U.S.C. § 1332. Of course, the claims of several plaintiffs, suing as members of a class, cannot be aggregated for the purpose of satisfying this jurisdictional predicate. See Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053," }, { "docid": "22011380", "title": "", "text": "1442(a)(1). New Jersey v. Moriarity, supra. While a federal officer might be n/amed as a nominal defendant in an action under 42 U.S. C. § 659, he will not be subjected to personal liability as the sole purpose of the action is to reach federal monies due and owing to the defendant. Second, even if “against” a federal officer, still the actions do not purport to penalize the officer for official acts taken in the past, nor do they attempt to enjoin future official acts. Accordingly, this court concludes that the actions are not within the court’s section 1442(a)(1) removal jurisdiction. The second basis of removal jurisdiction urged upon the court is 28 U.S.C. § 1441(a). This section provides: Except as otherwise expressly provided by Act of Congress, 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. The original jurisdiction required by section 1441(a) is allegedly provided in these cases by 28 U.S.C. § 1346(a)(2). The court has considered the arguments presented and is persuaded that section 1346(a)(2) does not provide original jurisdiction in the circumstances presented in the instant cases and, therefore, that section 1441(a) does not confer the necessary removal jurisdiction. 28 U.S.C. § 1346 provides in relevant part that the district courts shall have original jurisdiction of [a]ny . . . civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress .... The difficulty with section 1346 jurisdiction in the instant cases, however, is that there is not present here a “claim” against the United States. Under Georgia law, when a garnishee answers the summons of garnishment, the statements in the answer are accepted as true, and the garnishee is discharged from all further liability unless either the claimant or the defendant files a traverse contesting the answer. Ga.Code Ann. § 46-303 (Rev." }, { "docid": "23555241", "title": "", "text": "jurisdictional grounds. On September 6, 1991, the district court dismissed the case, holding that the action fell within certain exceptions to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. 1346(b), and therefore, that the court was without subject matter jurisdiction to hear the case. Goldstar filed a timely appeal. II. As a general proposition, the United States is subject to suit only to the extent that it has explicitly waived its sovereign immunity. See Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 1819, 75 L.Ed.2d 840 (1983). The subject matter jurisdiction of the federal courts is defined by any conditions the United States attaches to its waiver of immunity. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981). Goldstar asserts two theories upon which the United States could be found to have waived its immunity for suits such as the present case. We will address each theory in turn. A. Goldstar’s first contention is that jurisdiction is proper under the Alien Tort Statute, 28 U.S.C. § 1350. That provision states: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Id. While this statute would facially appear to grant jurisdiction for Goldstar’s action, the Alien Tort Statute has been interpreted as a jurisdictional statute only — it has not been held .to imply any waiver of sovereign immunity. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 (D.C.Cir.1985); Canadian Transp. Co. v. United States, 663 F.2d 1081, 1092 (D.C.Cir.1980). Thus, any party asserting jurisdiction under the Alien Tort Statute must establish, independent of that statute, that the United States has consented to suit. Goldstar contends that the United States has waived sovereign immunity under the provisions of the Hague Convention, a multilateral international treaty to which the United States is a signatory. The relevant provision of that document states, “A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation." }, { "docid": "16002681", "title": "", "text": "such action is brought. Defendant interprets the second sentence of § 1441(b) to mean that, in diversity actions, only the citizenship of defendants “properly joined and served” should be considered. Defendant has misinterpreted this section. 28 U.S.C. § 1441(b) must be read in conjunction with § 1441(a), which provides that: (a) Except as otherwise expressly provided by Act of Congress, 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(b) limits the removal of suits where jurisdiction is based on diversity of citizenship, by providing that such actions are removable only if none of the “properly joined and served” defendants is a citizen of the state in which the suit is brought. 28 U.S.C. § 1441(b) does not change the general rule of § 1441(a), that a civil action is not removable unless the district court would have original jurisdiction over the suit. Under 28 U.S.C. § 1332, district courts have original jurisdiction over actions based on diversity of citizenship only when each plaintiff is a citizen of a different state than each defendant. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2402, 57 L.Ed.2d 274 (1978). The fact that a defendant has not been served is irrelevant to the Court’s determination whether it has jurisdiction over the action based on complete diversity of citizenship. Accordingly, the Court finds that the citizenship of McLeod cannot be disregarded in determining whether this case was properly removed. Plaintiff and defendant McLeod are citizens of the same state. Therefore, complete diversity of citizenship does not exist, and the Court does not have original jurisdiction over this action under 28 U.S.C. § 1332. The Court further finds that there is no question arising under the laws, the Constitution, or the treaties of the United States, and holds that the instant case was improvidently removed" }, { "docid": "16757979", "title": "", "text": "inconvenience to the EPA would be minimal. Boron Oil Co. v. Downie, 873 F.2d at 68. The district court rejected the defense of sovereign immunity because neither the United States nor the EPA were named parties. This court reversed, holding that a state court, and federal court on removal, lacked jurisdiction to compel a federal employee to testify concerning information acquired during the course of his official duties, in a state court civil action to which the United States was not a party. Boron Oil Co. v. Downie, 873 F.2d at 69-71. It is clear that a federal court’s jurisdiction upon removal under 28 U.S.C. § 1442(a)(1) is derivative of the state court jurisdiction, and where the state court lacks jurisdiction over the subject matter or the parties, the federal court acquires none upon removal, even though in a like suit originally brought in federal court, the court would have had jurisdiction. Boron, 873 F.2d at 70. It is also clear that an action seeking specific relief against a federal official, acting within the scope of his delegated authority, is an action against the United States, subject to the governmental privilege of sovereign immunity. Boron, 873 F.2d at 69. Where an agency has not waived its immunity to suit, the state court (and the federal court on removal) lacks jurisdiction to proceed against a federal employee acting pursuant to agency direction. Id. In reversing the district court in Boron, this court reasoned that “[U.S. ex rel.] Touhy [v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951),] is part of an unbroken line of authority which directly supports Downie’s contention that a federal employee may not be compelled to testify contrary to his federal employer’s instructions under valid agency regulations.” In Touhy, the Supreme Court had held that subordinate federal officers could not be held in contempt for failing to comply with a court order in reliance on a validly promulgated regulation to the contrary. Further, we noted in Boron that the doctrine of sovereign immunity precluded the state court — and the federal court on removal- —" }, { "docid": "23392948", "title": "", "text": "statement that the coating was a “consumer product,” this new statement showed that removal was improper and that the district court lacked subject-matter jurisdiction (i.e., there was no Magnu-son-Moss claim). The district court granted Sherwin-Williams summary judgment, noting that its earlier ruling rejecting Gentek’s state-law warranty claims also defeated Gentek’s Magnuson-Moss claim. Further, the court rejected Gentek’s argument regarding jurisdiction, explaining that subject-matter jurisdiction existed under Magnu-son-Moss based on Gentek’s amended complaint. The court explained that, although “Sherwin-Williams determined, after discovery, that the Act does not apply to this action,” that determination “does not serve to divest [the court] of jurisdiction.” (JA 178.) Gentek appealed. Sherwin-Williams contended that Gentek is not the real party in interest and that this Court therefore lacks jurisdiction over the appeal. In December 2006, this Court rejected that argument, concluding that Gentek has standing. Gentek Bldg. Prods. Inc. v. Sherwinr-Williams Co., No. 06-3964, slip op. at 2 (6th Cir. Dec. 7, 2006) (order). II. DISCUSSION A. Subject-Matter Jurisdiction Gentek contends that the district court lacked subject-matter jurisdiction. This Court reviews de novo a district court’s exercise of subject-matter jurisdiction. Green v. Ameritech Corp., 200 F.3d 967, 972 (6th Cir.2000). To assess Gentek’s contention, we begin with first principles of removal jurisdiction. Defendants sued in state court generally may remove the suit to federal district court if the district court has original jurisdiction over the suit. 28 U.S.C. § 1441(a) (“Except as expressly provided by Act of Congress, 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.”). Thus, state-court lawsuits involving federal questions are removable: “Any civil action of which the district courts have original jurisdiction found on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.” 28 U.S.C. § 1441(b). To determine whether a claim" }, { "docid": "11583372", "title": "", "text": "The College filed a notice of appeal in all three cases. II DISCUSSION Before proceeding to the issues raised by the parties, we must determine whether the district court had subject matter jurisdiction over the claims raised in the College’s complaint. The parties did not address the issue in their initial presentations to this court; subject matter jurisdiction, however, cannot be waived. Courts have a duty to resolve apparent jurisdictional problems sua sponte. A. The College commenced the judicial proceedings in this case in the Circuit Court of Cook County. The College sought, by way of its “Complaint for Administrative Review,” judicial review of the Landmarks Commission’s decision to deny its application for demolition permits. The complaint was filed pursuant to the Illinois Administrative Review Act (“IARA”), see 735 ILCS 5/3-103 et seq., because the Landmarks Ordinance makes the final decision of the Commission approving or disapproving an application for a permit-a “final administrative decision” appealable under the Act. See MCC § 2-120-800. The College filed a second “Complaint for Administrative Review” after the Commission denied its application for an economic hardship exception. See MCC § 2-120-860. The defendants sought the removal of each of these complaints to the United States District Court for the Northern District of Illinois. Removal of “civil actions” from state court to federal court is authorized by 28 U.S.C. § 1441. The operative provision, section 1441(a), provides in relevant part: Except as otherwise expressly provided by Act of Congress, 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). Under section 1441(a), therefore, the removal jurisdiction of the district court is tied to the original jurisdiction of the federal courts; removal is proper only if the action originally could have been brought in the district court. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318" }, { "docid": "3972314", "title": "", "text": "admiralty jurisdiction, 28 U.S.C. § 1333, and more than 200 years of precedent interpreting this grant, that ultimately determine the removability of Plaintiffs claims. The removal statute, as amended in 2011, provides: Except as otherwise expressly provided by Act of Congress, 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) (2012). The statutory grant of admiralty jurisdiction provides: The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled .... 28 U.S.C. § 1333 (2012). Defendants reason that because district courts have original jurisdiction over “any civil case of admiralty or maritime jurisdiction,” id., Plaintiffs claims under general maritime law can be removed according to the plain language of Section 1441(a), which permits removal of “any civil action brought in a State court of which the district courts ... have original jurisdiction,” 28 U.S.C. § 1441(a) (2012). (Resp. (Dkt. # 12) at 8-10.) Precedent holds, however, that general maritime claims are not removeable absent an independent ground of federal subject matter jurisdiction, such as diversity jurisdiction. See, e.g., Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1069 (9th Cir.2001); In re Dutile, 935 F.2d 61, 63 (5th Cir.1991). Defendants argue that this precedent is inapplicable because it relied on language in the removal statute that was later modified or removed by the 2011 amendments to the Federal Rules of Civil Procedure (“2011 Amendments”). (Resp. at 4-6.) Specifically, although Section 1441(a) was unchanged by the 2011 Amendments, Section 1441(b) previously read: (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties, or laws of the United States shall be removable without regard to the citizenship" }, { "docid": "22105677", "title": "", "text": "civil action of which the district courts have original jurisdiction [except diversity cases], 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. 28 U.S.C. § 1367. Section 1367 also grants jurisdiction over claims that involve the join-der or intervention of additional parties, thereby codifying what had been dubbed “pendent-party” jurisdiction as well as some forms of “ancillary” jurisdiction. Thus § 1367 provides federal courts with statutory authority to hear some claims that lack an independent basis for federal subject matter jurisdiction. B. Removal Jurisdiction Generally. Cases begun in state court over which a federal court may also have jurisdiction can be removed by the defendants under 28 U.S.C. § 1441 (“Actions removable generally”). Section 1441(a) reads in relevant part: (a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the dis- triet 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. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded. Under (a), therefore, unless otherwise barred by Congress, any civil action brought in a state court (plaintiffs choice) over which a federal district court would have original jurisdiction may be removed by the defendant (defendant’s choice) to a district court. This would include both federal question and diversity cases as well as the miscellaneous federal jurisdiction cases. In the case now before us, Lindsey’s and Coughanour’s state court action included a claim under 42 U.S.C. § 1983, over which the federal court has jurisdiction under 28 U.S.C. §§ 1331 and 1343, plus a variety of state law claims arising out of the same events and circumstances, over which the federal court has supplemental jurisdiction under § 1367. Because the" }, { "docid": "22567578", "title": "", "text": "JURISDICTION The plaintiffs contend that the district court lacks subject matter jurisdiction over this case, because: (1) BMI attempted to remove the case to the wrong district court, i.e., to one whose district did not embrace the place where the state court action was pending; and (2) neither the Jefferson County nor Montgomery County Circuit Courts received proper notice from BMI that the case had been removed. To those contentions, BMI responds that: (1) removal to the wrong district is a procedural defect that has been waived by the plaintiffs and that does not defeat subject matter jurisdiction in any event; and (2) sufficient notice was provided to the state courts to terminate the jurisdiction of those courts. We turn first to the “wrong district” issue. A. REMOVAL TO THE WRONG DISTRICT As an initial matter, we note that there is no question that this ease arises under the laws of the United States, in accordance with the jurisdictional provisions of 28 U.S.C. § 1331. This is a Title VII race discrimination case, and § 1331 provides the federal courts with original nonexclusive jurisdiction over such eases. Accordingly, the question is not whether the federal courts have jurisdiction over the subject matter of the plaintiffs’ case, but instead is whether an attempted removal to the “wrong” federal district defeats that jurisdiction. In search of an answer, we turn first to the removal statute. The procedure for invoking the removal jurisdiction of the federal courts is governed by 28 U.S.C. §§ 1441 to 1452. The general rule is found in § 1441(a), which provides in relevant part: Except as otherwise expressly provided by Act of Congress, 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) (emphasis added). Here, of course, BMI did not remove the case to the “district and division embracing the place where such" }, { "docid": "211168", "title": "", "text": "An intrastate long distance telephone call is call that begins and ends in the same state. (Id.) . Worldcom cites sections 1441(a) and (b) as grounds for removal. Section 1441(a) provides: Except as otherwise expressly provided by Act of Congress, 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 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). Section 1441(b) provides that \"[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties, or laws of the United States shall be removable without regard to the citizenship or residence of the parties.” 28 U.S.C. § 1441(b). . Pursuant to 28 U.S.C. § 1331, federal district courts have \"original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Section 1337 provides that federal district courts have \"original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies....” 28 U.S.C. § 1337(a). Section 1368 states that federal district courts ... shall have original jurisdiction of any civil action based on a counterclaim raised pursuant to Section 337(c) of the Tariff Act of 1930, to the extent that it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim in the proceeding under section 337(a) of that Act. 28 U.S.C. § 1368. Although Worldcom has filed an Answer to the State's Complaint, it has not asserted any counterclaims. . Although Worldcom contends that the Supreme Court found the requisite degree of preemption in the rate-filing provisions of the FCA in the Central Office Telephone case, this Court notes that Central Office Telephone did not come to federal court by means of removal jurisdiction. Central Office Telephone filed suit against AT & T in federal district" }, { "docid": "21573729", "title": "", "text": "matter jurisdiction, for failure to join an indispensable party, and for failure to prosecute. The government asserted that Becenti’s suit operated against the United States because it was a suit against federal officers for actions taken within the scope of their employment and should be dismissed on sovereign immunity grounds. Becenti opposed the government’s motion and also moved the district court to “dismiss” the case for lack of removal jurisdiction. On October 20, 1988 the district court entered its judgment dismissing the complaint for lack of jurisdiction on sovereign immunity grounds. The court found that sovereign immunity barred suit where the relief requested would operate against the sovereign and that any judgment against Brooks and Vigil would, in effect, be a judgment against the United States. Becenti now appeals the district court’s dismissal, contending that removal from the tribal court is impermissible under 28 U.S.C. § 1442, which provides for removal from state courts only. For the reasons discussed below, we agree. DISCUSSION The government relies on the following provision authorizing removal in cases involving federal officials: “A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: ... Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office.... ” 28 U.S.C. § 1442(a)(1). This provision, like the removal jurisdiction granted in Sections 1441 and 1443(1) of Title 28, speaks only of removal of actions brought in “State” courts. Several courts have interpreted the “State court” language in both Section 1441 and 1443(1) as not encompassing actions commenced in courts other than those of the fifty states. See, e.g., Guam v. Landgraf, 594 F.2d 201, 202 (9th Cir.1979) (“We cannot read congressional references to an action in ‘State’ court as including an action in the courts of the Territory of Guam. When Congress has intended to extend § 1443(1) to an entity other than one of" }, { "docid": "15763573", "title": "", "text": "civil suit or criminal prosecution is commenced against any person for or on account of anything done by him while an officer of either House of Congress in the discharge of his official duty in executing any order of such House, the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the district court next to be holden in the district where the same is pending upon the petition of such defendant to said district court in the following manner: [The amendment of 1916 is underlined.] . 28 U.S.C. § 1441 provides: (a) Except as otherwise expressly provided by Act of Congress, 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. (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action 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. (c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction. (d) Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal" }, { "docid": "15494753", "title": "", "text": "becomes a party. 12 U.S.C. § 1821(d)(12)(A). . It is also appropriate for the court to inquire, sua spottte, whether it has subject matter jurisdiction. Medlin v. Boeing Vertol Co., 620 F.2d 957, 958 & 960 (3d Cir.1980); see also Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991). . Section 1819(b)(2)(B) provides, in pertinent part: ... the [FDIC] may, without bond or security, remove any action, suit, or proceeding from a State court to the appropriate United States district court. 12 U.S.C. § 1819(b)(2)(B). .Section 1819(b)(2)(A) provides, in pertinent part: ... all suits of a civil nature at common law or in equity to which the [FDIC], in any capacity, is a party shall be deemed to arise under the laws of the United States. 12 U.S.C. § 1819(b)(2)(A). . It is interesting to note the incongruity of the FDIC's attempt to avoid application of Section 1446 when its own notice of removal invokes that section. See MTech Corp. v. FDIC, 729 F.Supp. 1134, 1136 (N.D.Tex.1990). . The Resolution Trust Corporation was created by Congress to manage federally insured depository institutions for which a receiver or conservator has been appointed. See 12 U.S.C. § 1441a. . Section 1441(a) provides, in pertinent part: Except as otherwise expressly provided by Congress, 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 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). . Section 1446(a) provides: A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a" } ]

[ { "docid": "7843692", "title": "", "text": "the actual employee in the present case); Manuel v. Honda R & D Americas, Inc., 175 F.Supp.2d 987 (S.D.Ohio 2001)(same). Additionally, although mandatory arbitration is presumed valid, the waiver of any rights (substantive or procedural), must be both knowing and clear. See K.M.C. Co., Inc. v. Irving Trust Co., 757 F.2d 752 (6th Cir.1985); Trumbull v. Century Marketing Corp., 12 F.Supp.2d 683, 687 (N.D.Ohio.1998)(“[t]o conclude that there was a waiver of [the right to a jury trial], there must be evidence that the plaintiff intended such waiver.”). Finally, and most fundamentally, an agreement to arbitrate Title VII rights must comport with the principles of contract law. In deciding whether the arbitration agreements are enforceable, state-law contract principles control. Floss, 211 F.3d at 314. First, although courts may not invalidate arbitration agreements under state laws that only apply to arbitration provisions, general contract defenses may still operate to invalidate an arbitration agreement. Doctor’s Assoc. Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996). The Sixth Circuit has held that a contractual agreement to arbitrate may be invalidated by a showing of fraud, duress, mistake, unconscionability or any other ground upon which a contract may be set aside. Haskins, 230 F.3d at 239; accord Steven M. Burton v. J.C. Bradford & Co., L.L.C., No. 3:97-0153 (March 13, 1998, Nixon, J.). In Haskins, the Sixth Circuit explicitly rejected the more permissive approaches of two sister circuits. 230 F.3d at 235. See Rosenberg, 170 F.3d at 20 (arbitration may only be compelled in “appropriate cases,” the language used by the 1991 amendments to the Civil Rights Act); Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1305(9th Cir.1994)(holding that “a Title VII plaintiff may only be forced to forego her statutory remedies and arbitrate her claims if she has knowingly agreed to submit such disputes to arbitration”). See also Manuel, 175 F.Supp.2d at 996-97 (discussing Has-kins ). Most importantly, an arbitration agreement may not be upheld if it is unconscionable. As a Tennessee Court recently observed: Unconscionability may arise from a lack of a meaningful choice on the" } ]

[ { "docid": "6870827", "title": "", "text": "valid. Haskins v. Prudential Ins. Co. of Am., 230 F.3d 231, 239 (6th Cir.2000); Willis v. Dean Witter Reynolds, Inc. 948 F.2d 305, 310 (6th Cir. 1991). However, although the Supreme Court and lower courts endorse the use of arbitration, courts continue to emphasize that an arbitration agreement cannot force a party to forfeit any “substantive rights.” See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28, 111 S.Ct. 1647, 114 L.Ed.2d 26 (199Í)(no waiver of substantive rights in the employment discrimination context). Thus, “... even if arbitration is generally a suitable forum for resolving a particular statutory claim, the specific arbitral forum provided under an arbitration agreement must nevertheless allow for the effective vindication of that claim.” Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306 (6th Cir.2000). Additionally, since arbitration agreements are creatures of contract, a party cannot be required to submit to arbitration unless he or she has agreed to do so. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). See also Cooper v. M.R.M. Invest., 199 F.Supp.2d 771 (M.D.Tenn. 2002) (Nixon, J.). In the securities arena, agreements to arbitrate are governed by NASD rules, as set forth by the Securities and Exchange Commission (“S.E.C.”). 57 Fed.Reg. 52659. NASD Code of Arbitration Procedure rule 10301(d) and NASD Rule 3110® set the guidelines for the arbitration of securities claims. The S.E.C initially promulgated the rules against arbitration of class action claims in 1992, finding that since the judicial system had procedures in place to manage class action claims, those claims were better handled by the courts. 57 Fed.Reg. 52659. Rule 10301(d) provides that a firm may not move to compel arbitration against a customer “who had initiated in court a putative class action or is a member of a putative or certified class with respect to any claims encompassed by the class action.” To this Court’s knowledge, no court has determined whether this language refers to all claims that a party has, including non-class claims, or solely the party’s class action claims. III. DISCUSSION A. CLASS" }, { "docid": "1982153", "title": "", "text": "issue, however, we must address two preliminary arguments made by Meijer. First, Meijer argues that, regardless of the viability of the pre-dispute agreement, McMullen should be compelled to arbitrate her claims because she voluntarily and knowingly agreed to arbitration after the dispute had occurred. When Meijer internally reviewed McMullen’s claim after her termination, it issued a “results of review” statement on a Meijer “Termination Appeal Form.” The form states that to challenge the termination, an employee must request arbitration. Part 3 of the form states, “I request that my case be submitted to arbitration in accordance with the Company’s Termination Appeal Procedure.”' Beneath this statement, the form is signed solely by Wendy McMullen. McMullen did not agree to waive any right to sue by signing this form. The form was merely an administrative step required to initiate the arbitration process that McMullen agreed to upon her hire. The form itself does not constitute an arbitration agreement because it contains no promise not to sue on behalf of either party. Moreover, the form does not constitute an enforceable agreement because it lacks contractual consideration. It is an elemental tenet of Michigan contract law, which applies here, that past consideration cannot serve as legal consideration for a subsequent promise. Shirey v. Camden, 314 Mich. 128, 22 N.W.2d 98, 102 (1946). Meijer did not offer McMullen any new consideration in return for signing the form, which Meijer did not sign. Meijer’s' second preliminary argument is that our decision in Haskins prevents us from considering whether a pre-dispute arbitration agreement allows for the effective vindication of statutory claims. Meijer notes that we decided Has-kins after we decided Floss. In Haskins, this court held that “absent a showing of fraud, duress, mistake, or some other ground upon which a contract may be voided, a court must enforce a contractual agreement to arbitrate.” Haskins, 230 F.3d at 239. Meijer requests that we construe Haskins narrowly, arguing that McMullen can only escape from her agreement to arbitrate by showing “fraud, duress, or mistake.” In other words, Meijer contends that McMullen cannot ask a court to “inquire into" }, { "docid": "4526111", "title": "", "text": "(Mo.1995) (en banc). Plaintiff argues that the agreement to arbitrate should be invalidated because the following provisions do not allow for effective vindication of statutory rights: prohibition of class arbitrations, discovery, fee-shifting, and statute of limitations. The Court must first determine whether it is the appropriate forum to resolve these arguments. Recent Supreme Court authority suggests that any provision that is open to the interpretation or discretion of the arbitrator cannot be reached by the court. The Court stated, “it would be improper for a court to refuse to enforce an agreement to arbitrate based upon mere speculation about what an arbitrator might do.” PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401, 123 S.Ct. 1531, 1535, 155 L.Ed.2d 578 (2003) (refusing to decide whether potential limitations on damages invalidated an agreement to arbitrate). The Court went on to explain: [W]e should not, on the basis of mere speculation that an arbitrator might interpret these ambiguous agreements in a manner that casts their enforceability into doubt, take upon ourselves the authority to decide the antecedent question of how the ambiguity is to be resolved. In short, since we do not know how the arbitrator will construe the remedial limitations, the questions whether they render the parties’ agreements unenforceable and whether it is for courts or arbitrators to decide enforceability in the first instance are unusually abstract ... the proper course is to compel arbitration. Id. at 1535. While there is Sixth Circuit and other circuit authority deciding these issues, the cases are distinguishable because they either pre-date PacifiCare or the clauses at issue were less ambiguous or allowed less arbitrator discretion than the clauses in the instant case. See, e.g., McMullen v. Meijer, 355 F.3d 485, 493-94 (6th Cir.2004) (invalidating agreement to arbitrate when employer had exclusive control over the pool of potential arbitrators); Morrison v. Circuit City Stores, Inc., 317 F.3d 646 (6th Cir.2003) (considering whether an agreement to arbitrate was valid when employee had to pay costs of arbitration); Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306, 315 (6th Cir.2000) (discussing neutrality of the forum, discovery," }, { "docid": "7723460", "title": "", "text": "claims that since he never received a copy of the NASD rules, he was never informed of the rights he would surrender by agreeing to arbitrate and therefore should not be required to arbitrate his claims. However, ignorance as to the terms of the U-4 Form is no defense. Because Haskins signed the U-4 Form, which informed him that he would be bound by the NASD rules requiring him to arbitrate his claims arising out of termination of his employment, and because there has been no showing of fraud, duress, mistake, or some other ground upon which a contract may be voided, Has-kins is required to arbitrate his claims. Y. CONCLUSION For the above-stated reasons, the district court erred in denying Prudential’s motion to compel arbitration. The decision of the district court is REVERSED and the matter is REMANDED to the district court for entry of an order dismissing the case and compelling arbitration. . Subsequent to Haskins filing suit in this case, the NASD amended its rules. As of January 1, 1999, \"statutory employment-related discrimination claims are arbitrable if the parties agree to arbitration after the dispute has been raised, but, absent such agreement, arbitration is not compulsory.” Koveleskie v. SBC Capital Markets, Inc., 167 F.3d 361, 363 n. 1 (7th Cir.1999), cert, denied, 528 U.S. 811, 120 S.Ct. 44, 145 L.Ed.2d 40 (1999) (citing SEC Rel. No. 34-40109, 63 Fed.Reg. 35299). However, because Haskins' complaint was filed prior to January 1, 1999, this amendment is not applicable to his case. See id.; Hart v. Canadian Imperial Bank of Commerce, 43 F.Supp.2d 395, 399 (S.D.N.Y.1999). . Before the district court and on appeal, Haskins argues that compelling arbitration \"would interfere with and foster tensions ” with his collective bargaining rights. However, the U-4 Form signed by Haskins is not an agreement between him and Prudential. Instead, it is a contract with the securities exchanges. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25 n. 2, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). In denying Haskins’ claim, the district court relied upon O’Donnell v. First Investors Corp., 872 F.Supp." }, { "docid": "1982150", "title": "", "text": "decision to grant Meijer’s motion for summary judgment is reviewed de novo, Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir.1997), as is the district court’s decision to grant Meijer’s motion to compel arbitration, Wiepking v. Prudential-Bache Securities, Inc., 940 F.2d 996, 998 (6th Cir.1991). Similarly, the district court’s decisions regarding the existence of a valid arbitration agreement and the arbitrability of a particular dispute are reviewed de novo. Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306, 311 (6th Cir.2000). A district court’s denial of summary judgment is an interlocutory order that is not ordinarily appealable, but when the appeal from a denial of summary judgment is presented together with an appeal from a grant of summary judgment, we have jurisdiction to review the denial. Thomas v. United States, 166 F.3d 825, 828 (6th Cir.1999). When a district court denies a motion for summary judgment because it determines that there exists a genuine issue of material fact, we review the denial only for an abuse of discretion. Garner v. Memphis Police Dep’t, 8 F.3d 358, 363 (6th Cir. 1993). When, however, the district court denies summary judgment based solely upon legal grounds, we review the denial de novo. Id. Because the district court denied McMullen’s summary judgment motion solely upon legal grounds, we review this denial de novo. The Supreme Court has held that agreements to arbitrate employment disputes as a condition of employment are generally enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (FAA). Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). This court has consistently upheld the validity of pre-dispute mandatory arbitration agreements. Haskins, 230 F.3d at 239; Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 310 (6th Cir.1991). It is well settled that judicial protection of pre-dispute arbitral agreements extends to agreements to arbitrate statutory employment discrimination claims. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); Willis, 948 F.2d at 312. Arbitration of statutory claims is appropriate because “[b]y agreeing to arbitrate a" }, { "docid": "4526112", "title": "", "text": "question of how the ambiguity is to be resolved. In short, since we do not know how the arbitrator will construe the remedial limitations, the questions whether they render the parties’ agreements unenforceable and whether it is for courts or arbitrators to decide enforceability in the first instance are unusually abstract ... the proper course is to compel arbitration. Id. at 1535. While there is Sixth Circuit and other circuit authority deciding these issues, the cases are distinguishable because they either pre-date PacifiCare or the clauses at issue were less ambiguous or allowed less arbitrator discretion than the clauses in the instant case. See, e.g., McMullen v. Meijer, 355 F.3d 485, 493-94 (6th Cir.2004) (invalidating agreement to arbitrate when employer had exclusive control over the pool of potential arbitrators); Morrison v. Circuit City Stores, Inc., 317 F.3d 646 (6th Cir.2003) (considering whether an agreement to arbitrate was valid when employee had to pay costs of arbitration); Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306, 315 (6th Cir.2000) (discussing neutrality of the forum, discovery, cost-splitting, and arbitrator selection, but not reaching those issues based on finding that there was no agreement to arbitrate); Walker v. Ryan’s Family Steak Houses, Inc., 289 F.Supp.2d 916, 921-929 (M.D.Tenn.2003) (J. Trauger) (invalidating agreement to arbitrate when employer had exclusive control over pool of potential arbitrators). With these restrictions in mind, the Court will now consider each allegedly invalid provision. i. Collective Arbitration A recent Supreme Court case specifically states that the arbitrator, not the court, should determine whether class arbitration is permitted by an ambiguous contract. Green Tree Financial Corp. v. Bazzle, 539 U.S. 444, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003); see Pedcor Management Co., Inc v. Nations Personnel of Texas, Inc., 343 F.3d 355 (5th Cir.2003) (“[W]e do not now address the parties’ other arguments on appeal, most of which depend[ ] on the now-flawed premise that a district court maintains the initial authority to order class arbitration.”). Therefore, this Court cannot determine whether a prohibition on class arbitration would effectively vindicate rights because this Court does not have the authority" }, { "docid": "5970135", "title": "", "text": "action should not be in federal court at all and, pursuant to the FAA, moved to enforce the pre-employment arbitration agreements that Plaintiffs executed. For the reasons that follow, we hold that the district correctly refused to enforce Plaintiffs’ arbitration agreements as unenforceable under Tennessee law. A. Standard of Review This Court reviews de novo a district court’s decisions regarding both the existence of a valid arbitration agreement and the arbitrability of a particular dispute. Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306, 311 (6th Cir.2000) (citations omitted). B. Analysis 1. The FAA and State Law “The FAA provides for stays of proceedings in federal district courts when an issue in the proceeding is referable to arbitration, [9 U.S.C.] § 3, and for orders compelling arbitration when one party has failed, neglected, or refused to comply with an arbitration agreement, [id] § 4.” Gilmer v. Inter state/Johnson Lane Corp., 500 U.S. 20, 25, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). “The FAA expresses a strong public policy favoring arbitration of a wide class of disputes.” Cooper v. MRM Investment Co., 367 F.3d 493, 498 (6th Cir.2004). The Sixth Circuit has repeatedly applied the FAA to arbitration agreements formed in the employment setting. E.g., Cooper, supra; McMullen v. Meijer, Inc., 355 F.3d 485 (6th Cir.2004) (per curiam); Floss, supra. In particular, statutory claims may be the subject of an arbitration agreement, including employment discrimination claims and claims under the FLSA. Gilmer, 500 U.S. at 26-35, 111 S.Ct. 1647 (holding that there had been no showing that Congress intended to preclude the arbitration of claims under the Age Discrimination in Employment Act); Floss, 211 F.3d at 313 (holding that FLSA claims may be arbitrable). The FAA provides that “[a] written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. “Thus, generally applicable state-law contract defenses like fraud," }, { "docid": "1982157", "title": "", "text": "promotes in the instant appeal as the only means for invalidating such an agreement. Secondly, contrary to the position Meijer espouses, the court held that: Even if this Court found no contractual defenses to the enforcement of the [arbitration agreement], Plaintiffs substantive rights are affected by the agreement. Courts have recognized that, although arbitration agreements are generally favored, they will not be enforced if they affect an individual’s substantive rights. Gilmer, 500 U.S. at 28, 111 S.Ct. 1647, 114 L.Ed.2d 26. Where an individual is unable to vindicate his or her rights because of an obstacle erected by an arbitration agreement, the court may not enforce that arbitration agreement. Cooper, 199 F.Supp.2d at 780-81. Furthermore, even if Meijer’s interpretation of Haskins were correct, Haskins has been superseded by our en banc deei sion in Morrison v. Circuit City Stores, Inc., 317 F.3d 646 (6th Cir.2003). As we held in Morrison, “[t]he Supreme Court has made clear that statutory rights, such as those created by Title VII, may be subject to mandatory arbitration only if the arbitral forum permits the effective vindication of those rights.” 317 F.3d at 658. “Under Gilmer, the arbitral forum must provide litigants with an effective substitute for the judicial forum.... ” Id. at 659. Therefore, we must decide whether Meijer’s TAP provides McMullen with an effective substitute for the judicial forum to pursue her Title VII claims. The TAP adopted by Meijer is commendably fair except in one important respect: it grants Meijer unilateral control over the pool of potential arbitrators. McMullen relies heavily on Hooters of America v. Phillips, 173 F.3d 933 (4th Cir.1999), to support her argument that Meijer’s TAP is so unfair that it does not provide an effective means of vindicating her ■ Title VII rights. In Hooters, the Fourth Circuit invalidated an arbitration agreement that it found “so one-sided that [its] only possible purpose [was] to undermine the neutrality of the proceeding.” Id. at 938. The Hooters court stated, “By promulgating [a] system of warped rules, Hooters so skewed the process in its favor that Phillips has been denied arbitration in" }, { "docid": "1982149", "title": "", "text": "arbitration and for summary judgment. On March 23, 2000, the district court denied both motions from the bench. The court’s ruling indicated that the procedures used by Meijer to select an arbitrator did not comport with the requisite level of fairness for such mandatory-arbitration contracts to be binding. In conjunction with its decision, the court criticized the extent of control exercised by Meijer over the arbitral panel. The court also stated, “I’m sorry that there were not cross motions in the case. There weren’t, so we’ll still have this case alive here.” On September 21, 2000, McMullen moved for summary judgment. On October 2, 2000, Meijer moved for reconsideration of its earlier motions based on this court’s intervening decision in Haskins v. Prudential Insurance Company of America, 230 F.3d 231 (6th Cir.2000). The district court held a hearing on the motions on November 27, 2000, and subsequently denied McMullen’s motion for summary judgment, granted Meijer’s motion for reconsideration, and, upon reconsideration, granted Meijer’s motions for summary judgment and to compel arbitration. II. The district court’s decision to grant Meijer’s motion for summary judgment is reviewed de novo, Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir.1997), as is the district court’s decision to grant Meijer’s motion to compel arbitration, Wiepking v. Prudential-Bache Securities, Inc., 940 F.2d 996, 998 (6th Cir.1991). Similarly, the district court’s decisions regarding the existence of a valid arbitration agreement and the arbitrability of a particular dispute are reviewed de novo. Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306, 311 (6th Cir.2000). A district court’s denial of summary judgment is an interlocutory order that is not ordinarily appealable, but when the appeal from a denial of summary judgment is presented together with an appeal from a grant of summary judgment, we have jurisdiction to review the denial. Thomas v. United States, 166 F.3d 825, 828 (6th Cir.1999). When a district court denies a motion for summary judgment because it determines that there exists a genuine issue of material fact, we review the denial only for an abuse of discretion. Garner v. Memphis Police Dep’t, 8" }, { "docid": "1982151", "title": "", "text": "F.3d 358, 363 (6th Cir. 1993). When, however, the district court denies summary judgment based solely upon legal grounds, we review the denial de novo. Id. Because the district court denied McMullen’s summary judgment motion solely upon legal grounds, we review this denial de novo. The Supreme Court has held that agreements to arbitrate employment disputes as a condition of employment are generally enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (FAA). Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). This court has consistently upheld the validity of pre-dispute mandatory arbitration agreements. Haskins, 230 F.3d at 239; Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 310 (6th Cir.1991). It is well settled that judicial protection of pre-dispute arbitral agreements extends to agreements to arbitrate statutory employment discrimination claims. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); Willis, 948 F.2d at 312. Arbitration of statutory claims is appropriate because “[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Gilmer, 500 U.S. at 26, 111 S.Ct. 1647 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). Notwithstanding a general policy favoring such agreements, there are circumstances under which courts will not enforce pre-dispute mandatory arbitration agreements with regard to statutory employment discrimination claims. In Floss, we held that, “even if arbitration is generally a suitable forum for resolving a particular statutory claim, the specific arbitral forum provided under an arbitration agreement must nevertheless allow for the effective vindication of that claim.” Floss, 211 F.3d at 313. The central issue in this case is whether Meijer’s exclusive control over the pool, of potential arbitrators renders the arbitral forum so fundamentally unfair as to prevent McMullen from effectively vindicating her statutory rights, thereby precluding enforcement of the pre-dispute agreement to arbitrate the statutory claims. Before reaching this central" }, { "docid": "7843690", "title": "", "text": "a condition of employment are almost universally enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. (“FAA”), Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). Nevertheless, arbitration agreements may be attacked under “such grounds as exist at law or in equity for the revocation of a contract.” 9 U.S.C. § 2. The Sixth Circuit has consistently held that pre-dispute mandatory arbitration agreements are valid. Haskins v. Prudential Ins. Co. of Am., 230 F.3d 231, 239 (6th Cir.2000); Willis v. Dean Witter Reynolds, Inc. 948 F.2d 305, 310 (6th Cir.1991). Specifically, the Sixth Circuit has held that the employees may be required, as a condition of employment, to waive their right to bring future Title YII claims in court. Willis, supra. Almost every other Circuit to consider this issue has agreed with the Sixth Circuit. However, although the Supreme Court and lower courts endorse the use of arbitration, courts continue to emphasize that an employee cannot be required to forfeit any “substantive rights” as a condition of employment. See Gilmer v. Interstate/ Johnson Lane Corp., 500 U.S. 20, 28, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). Thus, “... even if arbitration is generally a suitable forum for resolving a particular statutory claim, the specific arbitral forum provided under an arbitration agreement must nevertheless allow for the effective vindication of that claim.” Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306 (6th Cir.2000). Some courts have held that requiring a plaintiff to pay for the right to vindicate their federal substantive rights would amount to an insurmountable obstacle. See e.g. Paladino v. Avnet Computer Tech, Inc., 134 F.3d 1054 (11th Cir.1998); Shankle v. B-G Maint. Mgmt. of Colo., Inc., 163 F.3d 1230 (10th Cir.1999)(finding that requiring the Plaintiff to pay costs renders the arbitral forum invalid); Cole v. Burns Int'l Sec. Serv., 105 F.3d 1465 (D.C.Cir.1997)(same). Cf. Bradford v. Rockwell Semiconductor Sys., Inc., 238 F.3d 549, 556 (4th Cir.2001)(declining to follow the per se rule, but holding that courts should assess whether the fees associated with arbitration are prohibitive to" }, { "docid": "1982171", "title": "", "text": "that it used for every arbitration in which it participated in the state of Michigan. . As a member of Meijer's standing panel of potential arbitrators in Michigan, Daniel had served as the arbitrator in seven arbitrations involving Meijer by the time McMullen initiated the TAP process. . The district judge’s decisions on the motions for summary judgment consisted of brief oral rulings from the bench, rather than written opinions. With regard to the propriety of issuing oral rulings on summary judgment motions, unaccompanied by written findings, this court previously has noted: This reviewing court, and more importantly, the parties, are much better served when, as is the custom in this circuit, the district court prepares a written opinion explaining its ruling and the reasoning, factual and legal, in support, especially when the ruling disposes of the case in a final judgment. Peck v. Bridgeport Machines, Inc., 237 F.3d 614, 617 (6th Cir.2001). This observation is equally appropriate here. . The “effective vindication” test referenced in Floss derives from Gilmer, where the Supreme Court proclaimed, ”[S]o long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.\" Gilmer, 500 U.S. at 28, 111 S.Ct. 1647 (quoting Mitsubishi Motors Corp., 473 U.S. at 637, 105 S.Ct. 3346). . Although the Rembert decision predated Haskins, it did not predate Beauchamp v. Great West Life Assurance Co., 918 F.Supp. 1091 (E.D.Mich.1996), the underlying case on which Haskins rested its holding. Indeed, the language in Haskins stating that \"absent a showing of fraud, duress, mistake or some other ground upon which a contract may be voided, a court must enforce a contractual agreement to arbitrate,” is adopted from Beauchamp, 918 F.Supp. at 1098. Thus, the Rembert court's conclusion that Beauchamp permits a fairness challenge to an arbitration agreement applies with equal force to Has-kins. . Meijer also argues that Gilmer clearly establishes that the preferred method of challenging allegations of bias is to pursue the underlying claims through the arbitration process and then seek" }, { "docid": "5970136", "title": "", "text": "of disputes.” Cooper v. MRM Investment Co., 367 F.3d 493, 498 (6th Cir.2004). The Sixth Circuit has repeatedly applied the FAA to arbitration agreements formed in the employment setting. E.g., Cooper, supra; McMullen v. Meijer, Inc., 355 F.3d 485 (6th Cir.2004) (per curiam); Floss, supra. In particular, statutory claims may be the subject of an arbitration agreement, including employment discrimination claims and claims under the FLSA. Gilmer, 500 U.S. at 26-35, 111 S.Ct. 1647 (holding that there had been no showing that Congress intended to preclude the arbitration of claims under the Age Discrimination in Employment Act); Floss, 211 F.3d at 313 (holding that FLSA claims may be arbitrable). The FAA provides that “[a] written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. “Thus, generally applicable state-law contract defenses like fraud, forgery, duress, mistake, lack, of consideration or mutual obligation, or uneonscionability, may invalidate arbitration agreements.” Cooper, 367 F.3d at 498 (citations omitted). “The federal policy favoring arbitration, however, is taken into consideration even in applying ordinary state law.” Id. (internal quotation marks and citations omitted). 2. Choice of Law Tennessee law applies when analyzing the enforceability of the three named Plaintiffs’ Arbitration Agreements because the agreements were executed in Tennessee and substantially performed in that state. See Cooper, 367 F.3d at 499 (holding that the district court correctly looked to Tennessee law to determine whether arbitration agreement was enforceable because the agreement was executed there, the plaintiffs employment and the alleged wrongful conduct occurred there, and neither party expected any other state’s law to apply); Floss, 211 F.3d at 314 (“In deciding whether the agreements are enforceable, we examine applicable state-law contract principles.”) (citations omitted). Ryan’s argues, however, that the laws of other states apply to the plaintiffs who have opted-in to this litigation and who worked at Ryan’s locations outside of Tennessee. Ryan’s further" }, { "docid": "4526098", "title": "", "text": "did, he did not know what he was signing. LJS also argues that, even though it cannot produce an agreement to arbitrate signed by Mr. Johnson, that there was an implied in fact contract. In order to determine whether there is a valid agreement to arbitrate, courts employ traditional principles of state contract law. See 9 U.S.C. § 2. Even when applying state contract law, a court must consider the strong federal policy favoring arbitration. Moses H. Cone Memorial Hosp. v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Any doubts about whether an agreement is enforceable, including defenses to arbitrability, should be resolved in favor of arbitration. Id. The Sixth Circuit has stated, “absent a showing of fraud, duress, mistake, or some other ground upon which a contract may be voided.” McMullen v. Meijer, Inc., 355 F.3d 485, 490 (6th Cir.2004). The party seeking to compel arbitration bears the burden of establishing the existence of an agreement to arbitrate by a preponderance of the evidence. See Smith v. Hammons, 63 S.W.3d 320 (Mo.App.2002) (the party seeking to establish the existence of agreement has the burden of proof); Lawing v. Interstate Budget Motel, Inc., 655 S.W.2d 774 (Mo.App.1983) (party must prove the existence of the contract by a preponderance of the evidence). Under the most basic principles of contract law, a contract exists when there is offer, acceptance, and consideration. See Tinucci v. R.V. Evans Co., 989 S.W.2d 181, 184 (Mo.App.1999). A contractual relationship can arise when circumstances, acts, and conduct of parties support a reasonable inference of mutual understanding and agreement. Marro v. Daniels, 914 S.W.2d 16 (Mo.App.1995). The agreement arises from the parties’ intentions, presumed from their non-explicit language or conduct. Id.; Westerhold v. Mullenix Corp., 777 S.W.2d 257 (Mo.App.1989); see Foster v. Sears, Roebuck & Co., 837 F.Supp. 1006, 1008 (W.D.Mo.1993) (applying contractual principle of estoppel to arbitration agreement); Ludwig v. Marion Labs., Inc., 465 F.2d 114 (8th Cir.1972) (it may be inferred that parties impliedly agreed to arbitrate). Moreover, under Missouri law, a person who has an opportunity to read" }, { "docid": "1982172", "title": "", "text": "”[S]o long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.\" Gilmer, 500 U.S. at 28, 111 S.Ct. 1647 (quoting Mitsubishi Motors Corp., 473 U.S. at 637, 105 S.Ct. 3346). . Although the Rembert decision predated Haskins, it did not predate Beauchamp v. Great West Life Assurance Co., 918 F.Supp. 1091 (E.D.Mich.1996), the underlying case on which Haskins rested its holding. Indeed, the language in Haskins stating that \"absent a showing of fraud, duress, mistake or some other ground upon which a contract may be voided, a court must enforce a contractual agreement to arbitrate,” is adopted from Beauchamp, 918 F.Supp. at 1098. Thus, the Rembert court's conclusion that Beauchamp permits a fairness challenge to an arbitration agreement applies with equal force to Has-kins. . Meijer also argues that Gilmer clearly establishes that the preferred method of challenging allegations of bias is to pursue the underlying claims through the arbitration process and then seek review only “[wjhere there was evident partiality or corruption in the arbitrators.” Gilmer, 500 U.S. at 30, 111 S.Ct. 1647 (quoting 9 U.S.C. § 10(b)). While this is true for allegations of potential or hypothetical bias among the arbitrators, it does not apply to an allegation, as is present here, that the arbitrator-selection process is fundamentally unfair. The Hooters court and the Floss court both recognized that procedural unfairness inherent in an arbitration agreement may be challenged before the arbitration. When the process used to select the arbitrator is fundamentally unfair, as in this case, the arbitral forum is not an effective substitute for a judicial forum, and there is no need to present separate evidence of bias or corruption in the particular arbitrator selected." }, { "docid": "1982152", "title": "", "text": "statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Gilmer, 500 U.S. at 26, 111 S.Ct. 1647 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). Notwithstanding a general policy favoring such agreements, there are circumstances under which courts will not enforce pre-dispute mandatory arbitration agreements with regard to statutory employment discrimination claims. In Floss, we held that, “even if arbitration is generally a suitable forum for resolving a particular statutory claim, the specific arbitral forum provided under an arbitration agreement must nevertheless allow for the effective vindication of that claim.” Floss, 211 F.3d at 313. The central issue in this case is whether Meijer’s exclusive control over the pool, of potential arbitrators renders the arbitral forum so fundamentally unfair as to prevent McMullen from effectively vindicating her statutory rights, thereby precluding enforcement of the pre-dispute agreement to arbitrate the statutory claims. Before reaching this central issue, however, we must address two preliminary arguments made by Meijer. First, Meijer argues that, regardless of the viability of the pre-dispute agreement, McMullen should be compelled to arbitrate her claims because she voluntarily and knowingly agreed to arbitration after the dispute had occurred. When Meijer internally reviewed McMullen’s claim after her termination, it issued a “results of review” statement on a Meijer “Termination Appeal Form.” The form states that to challenge the termination, an employee must request arbitration. Part 3 of the form states, “I request that my case be submitted to arbitration in accordance with the Company’s Termination Appeal Procedure.”' Beneath this statement, the form is signed solely by Wendy McMullen. McMullen did not agree to waive any right to sue by signing this form. The form was merely an administrative step required to initiate the arbitration process that McMullen agreed to upon her hire. The form itself does not constitute an arbitration agreement because it contains no promise not to sue on behalf of either party. Moreover, the form does not constitute" }, { "docid": "1982154", "title": "", "text": "an enforceable agreement because it lacks contractual consideration. It is an elemental tenet of Michigan contract law, which applies here, that past consideration cannot serve as legal consideration for a subsequent promise. Shirey v. Camden, 314 Mich. 128, 22 N.W.2d 98, 102 (1946). Meijer did not offer McMullen any new consideration in return for signing the form, which Meijer did not sign. Meijer’s' second preliminary argument is that our decision in Haskins prevents us from considering whether a pre-dispute arbitration agreement allows for the effective vindication of statutory claims. Meijer notes that we decided Has-kins after we decided Floss. In Haskins, this court held that “absent a showing of fraud, duress, mistake, or some other ground upon which a contract may be voided, a court must enforce a contractual agreement to arbitrate.” Haskins, 230 F.3d at 239. Meijer requests that we construe Haskins narrowly, arguing that McMullen can only escape from her agreement to arbitrate by showing “fraud, duress, or mistake.” In other words, Meijer contends that McMullen cannot ask a court to “inquire into the fairness of the terms of these arbitration contracts and to void them because one of their terms — the method of selecting the arbitrator — is allegedly unfair to her.” The district court concurred with Meijer, opining that “Has-kins has substantially narrowed the grounds on which one may challenge a contractual agreement to arbitrate.” Consequently, the district court granted Mei-jer’s motion for reconsideration. The district court’s ruling, however, overstates the impact of Haskins on the agreement signed by McMullen. In Has- kins, the plaintiff signed an agreement with a securities dealers’ association binding him to arbitrate any disputes arising with his employer. The plaintiffs challenge to the agreement focused on his ignorance as to the existence of the mandatory arbitration agreement, rather than on any perceived unfairness in the arbitration process. Haskins, 230 F.3d at 239-40. The Haskins court adopted a contracts-law approach to determining the validity of the agreement, holding that, despite plaintiffs ignorance, the agreement was enforceable absent fraud, mistake, duress, or another contractual ground for challenge. In arguing that McMullen can" }, { "docid": "1982156", "title": "", "text": "only escape arbitration by showing fraud, mistake, or duress, Meijer ignores the remaining portion of the holding in Haskins, where this court made an allowance for “some other ground upon which a contract may be voided.” Haskins, 230 F.3d at 239. This language sufficiently encompasses the “effective vindication” analysis prescribed by the United States Supreme Court and endorsed by this circuit in Floss. Indeed, subsequent cases have arrived at this precise conclusion, construing the Floss “effective vindication” analysis as another ground on which a mandatory arbitration agreement can be voided. See Cooper v. MRM Inv. Co., 199 F.Supp.2d 771, 775 (M.D.Tenn.2002); French v. First Union Sec., Inc., 209 F.Supp.2d 818, 826 (M.D.Tenn.2002); Rembert v. Ryan’s Steak Houses, 235 Mich.App. 118, 596 N.W.2d 208, 218 (1999). For example, in Cooper, the court extensively discussed Haskins in the course of assessing the validity of a pre-dispute agreement to arbitrate signed by a restaurant employee. In so doing, the court essentially divided the Haskins analysis into two separate stages. First, it undertook the Haskins contractual analysis that Meijer promotes in the instant appeal as the only means for invalidating such an agreement. Secondly, contrary to the position Meijer espouses, the court held that: Even if this Court found no contractual defenses to the enforcement of the [arbitration agreement], Plaintiffs substantive rights are affected by the agreement. Courts have recognized that, although arbitration agreements are generally favored, they will not be enforced if they affect an individual’s substantive rights. Gilmer, 500 U.S. at 28, 111 S.Ct. 1647, 114 L.Ed.2d 26. Where an individual is unable to vindicate his or her rights because of an obstacle erected by an arbitration agreement, the court may not enforce that arbitration agreement. Cooper, 199 F.Supp.2d at 780-81. Furthermore, even if Meijer’s interpretation of Haskins were correct, Haskins has been superseded by our en banc deei sion in Morrison v. Circuit City Stores, Inc., 317 F.3d 646 (6th Cir.2003). As we held in Morrison, “[t]he Supreme Court has made clear that statutory rights, such as those created by Title VII, may be subject to mandatory arbitration only if the" }, { "docid": "1982155", "title": "", "text": "the fairness of the terms of these arbitration contracts and to void them because one of their terms — the method of selecting the arbitrator — is allegedly unfair to her.” The district court concurred with Meijer, opining that “Has-kins has substantially narrowed the grounds on which one may challenge a contractual agreement to arbitrate.” Consequently, the district court granted Mei-jer’s motion for reconsideration. The district court’s ruling, however, overstates the impact of Haskins on the agreement signed by McMullen. In Has- kins, the plaintiff signed an agreement with a securities dealers’ association binding him to arbitrate any disputes arising with his employer. The plaintiffs challenge to the agreement focused on his ignorance as to the existence of the mandatory arbitration agreement, rather than on any perceived unfairness in the arbitration process. Haskins, 230 F.3d at 239-40. The Haskins court adopted a contracts-law approach to determining the validity of the agreement, holding that, despite plaintiffs ignorance, the agreement was enforceable absent fraud, mistake, duress, or another contractual ground for challenge. In arguing that McMullen can only escape arbitration by showing fraud, mistake, or duress, Meijer ignores the remaining portion of the holding in Haskins, where this court made an allowance for “some other ground upon which a contract may be voided.” Haskins, 230 F.3d at 239. This language sufficiently encompasses the “effective vindication” analysis prescribed by the United States Supreme Court and endorsed by this circuit in Floss. Indeed, subsequent cases have arrived at this precise conclusion, construing the Floss “effective vindication” analysis as another ground on which a mandatory arbitration agreement can be voided. See Cooper v. MRM Inv. Co., 199 F.Supp.2d 771, 775 (M.D.Tenn.2002); French v. First Union Sec., Inc., 209 F.Supp.2d 818, 826 (M.D.Tenn.2002); Rembert v. Ryan’s Steak Houses, 235 Mich.App. 118, 596 N.W.2d 208, 218 (1999). For example, in Cooper, the court extensively discussed Haskins in the course of assessing the validity of a pre-dispute agreement to arbitrate signed by a restaurant employee. In so doing, the court essentially divided the Haskins analysis into two separate stages. First, it undertook the Haskins contractual analysis that Meijer" }, { "docid": "6870826", "title": "", "text": "relief.” Tenn.Code. Ann. § 47-18-110. The statute of repose for violation of the Tennessee Securities Act is two years. Tenn.Code. Ann. § 48-2-122(h). Both statutes of repose may be tolled by a showing of fraudulent concealment, and the toll continues until the reasonably diligent plaintiff discovers the fraud. Fahmer v. S.W. Mfg., Inc., 48 S.W.3d 141, 145 (Tenn.2001). Lastly, the statute of limitations for a breach of fiduciary duty is three years, Tenn.Code. Ann. § 28-3-105, and the statute of limitations for commercial negligence is three years. F. Arbitration of Non-Class Claims Agreements to arbitrate disputes are generally favored. Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). The Supreme Court has recently held that contractual agreements to arbitrate disputes are almost universally enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. (“FAA”), Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). The Sixth Circuit has consistently held that pre-dispute mandatory arbitration agreements are valid. Haskins v. Prudential Ins. Co. of Am., 230 F.3d 231, 239 (6th Cir.2000); Willis v. Dean Witter Reynolds, Inc. 948 F.2d 305, 310 (6th Cir. 1991). However, although the Supreme Court and lower courts endorse the use of arbitration, courts continue to emphasize that an arbitration agreement cannot force a party to forfeit any “substantive rights.” See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28, 111 S.Ct. 1647, 114 L.Ed.2d 26 (199Í)(no waiver of substantive rights in the employment discrimination context). Thus, “... even if arbitration is generally a suitable forum for resolving a particular statutory claim, the specific arbitral forum provided under an arbitration agreement must nevertheless allow for the effective vindication of that claim.” Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306 (6th Cir.2000). Additionally, since arbitration agreements are creatures of contract, a party cannot be required to submit to arbitration unless he or she has agreed to do so. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)." } ]

[ { "docid": "22296895", "title": "", "text": "arguments made in the summary judgment motion, and therefore does not constitute a valid 59(e) motion. We find no merit in either of these arguments. A. Complete Motion The defendants’ contention that Clipper’s 59(e) motion was incomplete because the supporting affidavits were not filed within the time for service is spurious. The 59(e) motion was complete, valid, and sufficient to toll the running of time to file the Notice of Appeal without the affidavits. Rule 59(e) itself does not require supporting affidavits. The only indication in the Federal Rules of Civil Procedure as to what is necessary to constitute a valid motion is found in Rule 7(b)(1). Rule 7(b)(1) states that a motion “shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” Clipper’s 59(e) motion as originally served set out the grounds on which the motion was based with particularity. Along with the motion, Clipper filed a 65-page document of supporting points and authorities, which raised substantive legal questions about the summary judgment motion without the need for the additional factual support that the affidavits would provide. This was more than sufficient to satisfy the particularity requirement of Rule 7(b). Defendants cite Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53 (2nd Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 166, 50 L.Ed.2d 140 (1976), and Martinez v. Trainor, 556 F.2d 818 (7th Cir. 1977), in support of their contention that Clipper’s motion was incomplete. Neither of these cases suggest that the motion filed by Clipper was insufficient and invalid as a 59(e) motion. Daily Mirror is clearly distinguishable from the instant case. In Daily Mirror the plaintiffs filed a motion to vacate under Rule 60(b) of the Federal Rules of Civil Procedure after the trial judge granted summary judgment for defendants. 60(b) motions, even if valid, do not toll the time for filing notice of appeal. In footnote, the Daily Mirror court noted that while under some circumstances a court has discretion to treat a 60(b) motion as a 59(e) motion, such treatment would be" } ]

[ { "docid": "18732602", "title": "", "text": "court assured him that the motion was timely and took it under advisement. If the motion was timely, appeal was impossible, for a timely motion for a new trial suspends the finality of the judgment. Griggs v. Provident Consumer Discount Co., 459 U.S. 56,103 S.Ct. 400, 74 L.Ed.2d 225 (1982). By the time the judge decided the motion, the original time within which to appeal had run. The Court held that when a party performs “an act which, if properly done, postponed the deadline for filing his appeal” and the district court “concluded that the act had been properly done” (375 U.S. at 387, 84 S.Ct. at 398), the time to appeal starts from the date of the district court’s action. Like Harris, Thompson rests on the fact that the rules permit certain things to extend a period of time. It is then necessary to decide how a mutual mistake about the existence of this time-extending act will affect an appeal. The foundation for a case such as Thompson — a rule enlarging the time under specified circumstances — is missing here, for Rule 6(b) says that there shall be no enlargments. It is therefore no surprise that Eady stands alone. So far as I can determine, no other court of appeals permits a district court to act on a Rule 59 motion filed more than 10 days after the entry of judgment, no matter the excuse. See 4 Wright & Miller, Federal Practice & Procedure § 1168 (1973) (characterizing Eady as the only case of its kind, a characterization the 1985 pocket part does not retract). Perhaps more interesting, no other case in this court of appeals has followed Eady. Cases both before and after Eady hold that purported extensions of time under Rule 59(b) are ineffectual. In Hulson v. Atchison, Topeka & Santa Fe Ry., 289 F.2d 726 (7th Cir.), cert. denied, 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36 (1961), the district court granted a 10-day extension of time within which to seek a new trial. The court acted on a motion by plaintiffs; defendants represented" }, { "docid": "19135035", "title": "", "text": "to the plaintiffs motion with affidavits showing that any contested issues of fact between the parties are not material. To the extent that there is some dispute between Ticali’s Rule 56.1 statement and the defendants’ papers, the facts will be viewed in the light most favorable to the plaintiff and any facts in Ticali’s Rule 56.1 statement which remain uncon-troverted by the defendants’ papers will be accepted as true. See Dusanenko v. Maloney, 726 F.2d 82, 84 (2d Cir.1984). Turning to the defendants’ motion for summary judgment, the court notes that, while it could deny their motion on the ground that they failed to comply with Local Rule 56.1, this Court is not compelled to do so but may overlook the “technical deficiency” of a party’s submission. Zeno v. Cropper, 650 F.Supp. 138, 139 (S.D.N.Y.1986) (citing Reisner v. General Motors Corp., 511 F.Supp. 1167, 1174-75 n. 14-15 (S.D.N.Y.1981), aff'd, 671 F.2d 91 (2d Cir.), cert. denied, 459 U.S. 858, 103 S.Ct. 130, 74 L.Ed.2d 112 (1982)). Though the defendants indeed failed to submit a Rule 56.1 statement with their moving papers, their affidavits set forth clearly the few issues of fact that are disputed and will be deemed to satisfy the rule. C. The Motion to Strike Various Affidavits and Exhibits In an additional procedural matter, the plaintiff requests that this Court strike certain materials that have been submitted either in support of defendants’ motion for summary judgment or in opposition to plaintiffs motion for summary judgment. The only “material” aimed at which the Court will consider are the “Teachers’ Affidavits” (made by teachers and staff who worked at the School during the relevant time period) attached as Exhibit 14 to the First Sarna Affidavit. Ticali corréctly urges this Court to disregard those parts of the affidavits that are not based on personal knowledge as being inadmissible. PL’s Mem. in Supp. of Mot. to Strike at 5 (citing United States v. Alessi, 599 F.2d 513, 515 (2d Cir.1979)). In using the teacher’s affidavits as evidence, this Court relies only on those portions based upon personal knowledge of the affiant. II." }, { "docid": "5726328", "title": "", "text": "rehashes the arguments made in the summary judgment motion, and therefore does not constitute a valid 59(e) motion. We find no merit in either of these arguments. A. Complete Motion The defendants’ contention that Clipper’s 59(e) motion was incomplete because the supporting affidavits were not filed within the time for service is spurious. The 59(e) motion was complete, valid, and sufficient to toll the running of time to file the Notice of Appeal without the affidavits. Rule 59(e) itself does not require supporting affidavits. The only indication in the Federal Rules of Civil Procedure as to what is necessary to constitute a valid motion is found in Rule 7(b)(1). Rule 7(b)(1) states that a motion “shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” Clipper’s 59(e) motion as originally served set out the grounds on which the motion was based with particularity. Along with the motion, Clipper filed a 65-page document of supporting points and authorities, which raised substantive legal questions about the summary judgment motion without the need for the additional factual support that the affidavits would provide. This was more than sufficient to satisfy the particularity requirement of Rule 7(b). Defendants cite Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53 (2nd Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 166, 50 L.Ed.2d 140 (1976), and Martinez v. Trainor, 556 F.2d 818 (7th Cir. 1977), in support of their contention that Clipper’s motion was incomplete. Neither of these cases suggest that the motion filed by Clipper was insufficient and invalid as a 59(e) motion. Daily Mirror is clearly distinguishable from the instant case. In Daily Mirror the plaintiffs filed a motion to vacate under Rule 60(b) of the Federal Rules of Civil Procedure after the trial judge granted summary judgment for defendants. 60(b) motions, even if valid, do not toll the time for filing notice of appeal. In footnote, the Daily Mirror court noted that while under some circumstances a court has discretion to treat a, 60(b) motion as a 59(e) motion, such treatment" }, { "docid": "23650216", "title": "", "text": "so that the failure to make a timely motion divests the district court of power to modify the trial verdict. Lapiczak v. Zaist, 451 F.2d 79, 80 (2d Cir.1971). Rule 6(b) also denies to district courts the power to enlarge the ten-day limit under either rule. Id.; see also Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 262 n. 5, 98 S.Ct. 556, 559 n. 5, 54 L.Ed.2d 521 (1978) (“Rule 6(b) prohibits enlargement of the time period prescribed in all of these Rules.”). As we recently noted: [T]he rule against the discretionary enlargement of certain time periods is “mandatory and jurisdictional and ... cannot be circumvented regardless of excuse.” ... A request for an extension of time to file a motion seeking j.n.o.v. [Rule 50(b)] or a new trial [Rule 59] is ineffective even if it is received without objection and granted by the court_ The question, then, is whether [counsel’s] statements [during the 10-day period] constituted an oral motion or an expression of desire to file a subsequent (and tardy) written motion. Meriwether v. Coughlin, 879 F.2d 1037, 1041 (2d Cir.1989) (citations omitted). In Meriwether, we concluded that counsel’s statement that “I would, your Honor, like to at this time note that defendants, wish to move for a judgment notwithstanding the verdict,” although inartful, did constitute a motion under Rule 50(b), and was not a mere request for an extension of time to make the motion. Id. at 1040. In reaching that conclusion, we distinguished Hulson v. Atchison, T. & S.F. Ry., 289 F.2d 726 (7th Cir.), cert. denied, 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36 (1961), where the Seventh Circuit construed the statement, “L am merely- asking for an extension of time in which to file my motion” as an impermissible motion for an extension. Id..at 727, 729. We found that “[t]he language in Hudson was much clearer, and the trial court in [.Hulson ], unlike [Meriwether], had rejected the ... interpretation” that the language was the motion itself. 879 F.2d at 1041. Here, defense counsel spoke of the motion prospectively; he requested an" }, { "docid": "23196785", "title": "", "text": "was supplemented by the papers filed later. We begin by acknowledging, as did the district court, see Mem.Decis. at 3 n. 3, that the trial court cannot enlarge the ten-day time period specified by Rule 50(b). Federal Rule of Civil Procedure 6(b) states that a court “may not extend the time for taking any action under Rule[ ] 50(b) ... except to the extent and under the conditions stated in [it],” and Rule 50(b) has no provision for enlargement. In Lapiczak v. Zaist, 451 F.2d 79 (2d Cir.1971), we held that the rule against the discretionary enlargement of certain time periods is “mandatory and jurisdictional and ... cannot be circumvented regardless of excuse.” Id. at 80 (improper to enlarge time period allowed by Rule 59(d)); see also 9 C. Wright & A. Miller, Federal Practice and Procedure § 2537, at 601 (1971). A request for an extension of time to file a motion seeking j.n.o.v. or a new trial is ineffective even' if it is received without objection and granted by the court. Hulson v. Atchison, Topeka 6 Santa Fe Ry., 289 F.2d 726, 728-29 (7th Cir.), cert. denied, 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36 (1961). The question, then, is whether Mr. Cohen’s statements constituted an oral motion or an expression of desire to file a subsequent (and tardy) written motion. We agree with the district court that the statement “I would ... like to ... note that defendants wish to move” was a motion; we believe that the use of subjunctive and precatory language reflected politeness, rather than any disinclination to make the motion. This case is distinguishable from Hulson, in which the appeals court accepted the district court’s finding that the statement “I am merely asking for an extension of time in which to file my motion” was not an oral motion. Id. at 727, 729. The language in Hulson was much clearer, and the trial court in that case, unlike this one, had rejected the movant’s interpretation of the language. Likewise, plaintiffs cannot rely on Mr. Cohen’s statement that he could not comply with" }, { "docid": "18732603", "title": "", "text": "under specified circumstances — is missing here, for Rule 6(b) says that there shall be no enlargments. It is therefore no surprise that Eady stands alone. So far as I can determine, no other court of appeals permits a district court to act on a Rule 59 motion filed more than 10 days after the entry of judgment, no matter the excuse. See 4 Wright & Miller, Federal Practice & Procedure § 1168 (1973) (characterizing Eady as the only case of its kind, a characterization the 1985 pocket part does not retract). Perhaps more interesting, no other case in this court of appeals has followed Eady. Cases both before and after Eady hold that purported extensions of time under Rule 59(b) are ineffectual. In Hulson v. Atchison, Topeka & Santa Fe Ry., 289 F.2d 726 (7th Cir.), cert. denied, 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36 (1961), the district court granted a 10-day extension of time within which to seek a new trial. The court acted on a motion by plaintiffs; defendants represented that they did not object. Plaintiffs took all the time the court allowed them, but when they filed the motion the defendants opposed it, relying on Rule 6(b). This court held that the defendants were right; the extension was unauthorized, the motion ineffectual. See also Nugent v. Yellow Cab Co., 295 F.2d 794 (7th Cir.1961). Eady did not cite either Hulson or Nugent. The panel was not authorized to overrule them. In more recent years we have repeatedly said that the time within which to file a motion for a new trial may not be extended. E.G., Marañe, Inc. v. McDonald’s Corp., 755 F.2d 106, 111 (7th Cir.1985); Textile Banking Co. v. Rentschler, 657 F.2d 844, 849 (7th Cir.1981). Eady appears in our cases — in the rare occasions on which it appears at all — for a point related only to Thompson. For example, in Marañe we cite Eady for the proposition that “an appellate court may and should hear an appeal even though it is not timely, if the appellant reasonably relied on" }, { "docid": "23245307", "title": "", "text": "it questions the correctness of the April 30 Judgment Order. See Dove v. Codesco, 569 F.2d 807 (4th Cir. 1978). We believe that Sarah’s May 9 motion, even under the most generous characterization, fails to qualify as a Rule 59(e) motion. The document does not propose an alteration or amendment of the April 30 Judgment Order and states no grounds upon which this type of relief could be granted. See Martinez v. Trainor, 556 F.2d 818 (7th Cir. 1977). Contrary to the claims of Sarah’s counsel, the motion does not question the district court’s jurisdiction or the constitutional validity of the April 30 Judgment Order pending further proceedings. Sarah’s contention that the May 9 motion sought an extension of time in which to file a Rule 59(e) motion is similarly without merit. It is well-settled that the district court lacks the power to extend the 10-day filing deadline imposed on Rule 59(e) motions. United States v. Hall, 463 F.Supp. 787 (W.D.Mo.), aff’d, 588 F.2d 1214 (8th Cir. 1978); Pacific Coast Medical Enterprises v. Califano, 440 F.Supp. 296 (D.C.Cal.1977), modified on other grounds, 633 F.2d 123 (9th Cir. 1980); Gilroy v. Erie-Lackawanna R. R., 44 F.R.D. 3 (D.C.N.Y.1968); Hulson v. Atchison, T. & S. F. R. R., 27 F.R.D. 280 (N.D.Ill.1960), aff’d in part, dismissed in part, 289 F.2d 726 (7th Cir.), cert. denied, 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36 (1961). Finally, Sarah complains that the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure make it almost impossible for a party to seek relief from a default judgment order in the district court and to preserve the right to appeal from the judgment itself at a later date. FRCP Rule 55(c) directs a party seeking relief from a default judgment order to file a Rule 60(b) motion to vacate the judgment in the district court. Since Rule 60(b) motions do not toll the deadline for filing an appeal, the party must also file a notice of appeal in the district court within 30 days of the entry of the default judgment order. According to" }, { "docid": "17238575", "title": "", "text": "& Sav. Ass’n, 9 Cir., 268 F.2d 16, 20 (1959), cert. denied 361 U.S. 903, 80 S.Ct. 211, 4 L.Ed.2d 158. Further, the “stop-gap motion” in the form of counsel’s letter can only be treated for what it was—a request that the trial court not dismiss the action. By no stretch of the imagination can it be considered a timely motion to amend the judgment under Rule 59(e). Hulson v. Atchison, T. & S. F. Ry. Co., 7 Cir., 289 F.2d 726, 729 (1961), cert. denied 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36. Plaintiff is on equally untenable grounds in trying to bring himself within Rule 60(b) (2) on the grounds of newly discovered evidence. It is apparent that the items referred to were gleaned from representations made to the trial court by defendant’s counsel in oral arguments and briefs. There is no ade quate showing that plaintiff could not have discovered these matters by the exercise of due diligence. It appears that his counsel simply failed to appreciate the legal significance of the facts at hand. There is no merit in this contention. In choosing to reject this latter contention on its merits, we do not hold that this is a proper contention to make in this case. The action was dismissed by the trial court pursuant to a motion without the introduction of evidence. Rule 60(b) (2) grants relief by reason of “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).” (Emphasis added.) This would seem to cast grave doubt on its applicability where there has been no trial on the merits and no evidence presented to the court. See Walker v. Bank of America National Trust & Sav. Ass’n, supra, 268 F.2d at 26. It should be noted again that plaintiff chose not to appeal the judgment of January 17, 1961 dismissing the action and that the trial court denied leave to file a second amended complaint on February 8, 1961. Five days later, on February 13, 1961 (during the 30" }, { "docid": "17238578", "title": "", "text": "289 F.2d 726, 730 (1961), cert. denied, 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36; Nugent v. Yellow Cab Company, 7 Cir., 295 F.2d 794, 796 (1961), cert. denied, 82 S.Ct. 844. For the foregoing reasons, we hold that the district court did not abuse its discretion in denying plaintiff’s motion under Rule 60(b) to vacate the final judgment dismissing this action. On its facts, the instant case is completely devoid of the situations usually found by the courts to justify relief under Rule 60(b). The order of the district court appealed from is affirmed. Affirmed. . “Rule 60. Relief from Judgment or Order & * * * * '“(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment, upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. * * *» . Rule 59(e). “Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.”" }, { "docid": "17238574", "title": "", "text": "when he sought to file his second amended complaint, and on September 22, 1961, when he sought relief under Rule 60(b). We think this claim, under all the circumstances shown by the record, is wholly without merit. In any event, it was addressed to the sound discretion of the trial court and we find no abuse of discretion in the ruling on this proposition. We are unimpressed with plaintiff’s further contention that it was not possible for his counsel “to prepare a second amended complaint within the ten days” and that his counsel acted in the belief that their letter of January 17, 1961 to the trial court “would act as a stop-gap motion within the ten days.” As defendants aptly point out, there is nothing in the Rules requiring the filing of an amended complaint within the ten day period. Plaintiff could merely have filed a motion under Rule 59(e) for modification of the judgment dismissing the action and for leave to file the second amended complaint. Walker v. Bank of America National Trust & Sav. Ass’n, 9 Cir., 268 F.2d 16, 20 (1959), cert. denied 361 U.S. 903, 80 S.Ct. 211, 4 L.Ed.2d 158. Further, the “stop-gap motion” in the form of counsel’s letter can only be treated for what it was—a request that the trial court not dismiss the action. By no stretch of the imagination can it be considered a timely motion to amend the judgment under Rule 59(e). Hulson v. Atchison, T. & S. F. Ry. Co., 7 Cir., 289 F.2d 726, 729 (1961), cert. denied 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36. Plaintiff is on equally untenable grounds in trying to bring himself within Rule 60(b) (2) on the grounds of newly discovered evidence. It is apparent that the items referred to were gleaned from representations made to the trial court by defendant’s counsel in oral arguments and briefs. There is no ade quate showing that plaintiff could not have discovered these matters by the exercise of due diligence. It appears that his counsel simply failed to appreciate the legal significance of" }, { "docid": "12845679", "title": "", "text": "as a whole fairly and adequately apprised the jury of the applicable law.\" (emphasis added). This statement suggests that the court considered all of the arguments regarding jury instructions. . See, e.g., Citizens Nat'l Bank of Lubbock v. Speer, 220 F.2d 889, 891 (5th Cir.1955) (court order granting new trial was \"not done out of time by the court on its own initiative and it was therefore not beyond the court's jurisdiction\" because court relied upon a ground raised in new trial motion); Pruett v. Marshall, 283 F.2d 436 (5th Cir.1960) (district court could allow amendment to timely new trial motion in a proper case, but not where inexcusable delay in filing amendment was not explained and mov-ant was not prejudiced); Russell v. Monongahela R.R. Co., 262 F.2d 349, 354 (3d Cir.1958) (district court lacks authority to consider new grounds in support of new trial motion filed after 11 day service period had run); Hulson v. Atchison, Topeka and Santa Fe R.R. Co., 289 F.2d 726, 729 (7th Cir.) (district court could not consider grounds for new trial offered after ten day service period expired despite oral grant of extension of time for filing), cert. denied, 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36 (1961); Francis v. Southern Pacific Co., 162 F.2d 813, 818 (10th Cir.1947) (amendment to motion for new trial filed after 11 day service period could not be considered by district court), aff'd, 333 U.S. 445, 68 S.Ct. 611, 92 L.Ed. 798 (1948); McCloskey v. Kane, 285 F.2d 297, 298 (D.C.Cir.1960) (per curiam) (district court correctly refused to consider amendment to new trial motion filed after 11 day service period had expired). See generally, 6A J. Moore, J. Lucas & G. Grotheer, Moore's Federal Practice ¶ 59.09[2] (2d ed. 1986). . The original 1966 amendment to Rule 59 would have altered the language of Rule 59(b) as follows: (b) Time for Motion. A motion for a new trial shall be served not later than 10 days after the entry of the judgment. After a motion has been thus timely served, the court in its discretion may" }, { "docid": "3234701", "title": "", "text": "& S.F. Ry. Co., 289 F.2d 726, 729 (7th Cir.), cert. denied, 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36 (1961) wherein the Court stated: The 10 day limit for filing a motion for new trial fixed in Rule 59(b) cannot be enlarged under Rule 6(b), except as provided in subsection (e) of Rule 59, and such exception has no application to the situation before us here. * * sis * * * In order to avoid the application of the foregoing rules, plaintiffs urge this court to treat the motion for extension “to amend their motion for a new trial,” served on June 16, 1960, as a motion for a new trial. The trial court did not err in rejecting this contention. Plaintiffs’ motion “cannot be measured by its unexpressed intention or wants.” It “should be treated as nothing but what it actually was,” one to amend a motion for a new trial which was not on file and was never timely filed. Johnson v. New York, N.H. & H.R. Co. [1952] supra, 344 U.S. [48] at page 51, 73 S.Ct. [125] at page 127 [97 L.Ed. 77]; John E. Smith’s Sons Co. v. Lattimer Foundry & Mach. Co., D.C.M.D.Pa.1956, 19 F.R.D. 379, 381, and cases cited therein, affirmed 3 Cir., 1956, 239 F.2d 815. Thus, the Court concludes plaintiff has not filed a Rule 60(b) motion. The Court further finds that if the plaintiff seeks to have his second amended complaint treated as a Rule 60(b) motion, the Court hereby vacates and sets aside its prior order allowing the amendment. The Court, in granting the amendment, intended to grant plaintiff leave to file an amended complaint, not a Rule 60(b) motion. B. Assuming arguendo the second amended complaint is a Rule 60(b) motion, can the amendment relate back to the original complaint? Even assuming plaintiffs second amended complaint could be considered a Rule 60(b) motion, the Court must determine if the amendment can relate back to the original complaint. If the amendment can relate back, the alleged Rule 60(b) motion would have been filed within a year." }, { "docid": "3234728", "title": "", "text": "a reply to an answer or a third-party answer. (b) Motions and Other Papers. (l)An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. (2) The rules applicable to captions and other matters of form of pleadings apply to all motions and other papers provided for by these rules. (3) All motions shall be signed in accordance with Rule 11. . McLellan v. Mississippi Power & Light Co., 526 F.2d 870, 872 n. 2 (5th Cir.1976), modified on reh'g on other grounds, 545 F.2d 919 (5th Cir.1977). See also McDonald v. Hall, 579 F.2d 120 (1st Cir.1978); Fuhrer v. Fuhrer, 292 F.2d 140 (7th Cir.1961); United States v. 64.88 Acres of Land, 25 F.R.D. 88 (W.D.Pa.1960); Wright & Miller, Federal Practice and Procedure: Civil § 1475. . For a contrary view, see Hale v. Ralston Purina Co., 432 F.2d 156, 159 (8th Cir.1970), which implied that a Rule 60(b) motion could relate back under Rule 15(c). The court in Hale did not, however, allow relation back under the facts of that case. . Nugent v. Yellow Cab Co., 295 F.2d 794 (7th Cir.1961) cert. denied, 369 U.S. 828, 82 S.Ct. 844, 7 L.Ed.2d 793 (1962); Hulson v. Atchinson, T. & S.F. Ry. Co., 289 F.2d 726 (7th Cir.) cert. denied, 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36 (1961); Mickey v. Tremco Mfg. Co., 226 F.2d 956 (7th Cir.1955); Bass v. Spitz, 522 F.Supp. 1343 (E.D.Mich.1981); McCarthy v. Cahill, 249 F.Supp. 194 (D.D.C.1966). . Marane, Inc. v. McDonald’s Corp., 755 F.2d 106 (7th Cir.1985); Gribble v. Harris, 625 F.2d 1173, 1174 (5th Cir.1980); Flint v. Howard, 464 F.2d 1084 (1st Cir.1972); Steward v. Atlantic Ref. Co., 235 F.2d 570 (3d Cir.1956); Torockio v. Chamberlain Mfg. Co., 56 F.R.D. 82, 85 n. 6 (W.D.Pa.1972), aff'd without opinion, 474" }, { "docid": "23196786", "title": "", "text": "Atchison, Topeka 6 Santa Fe Ry., 289 F.2d 726, 728-29 (7th Cir.), cert. denied, 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36 (1961). The question, then, is whether Mr. Cohen’s statements constituted an oral motion or an expression of desire to file a subsequent (and tardy) written motion. We agree with the district court that the statement “I would ... like to ... note that defendants wish to move” was a motion; we believe that the use of subjunctive and precatory language reflected politeness, rather than any disinclination to make the motion. This case is distinguishable from Hulson, in which the appeals court accepted the district court’s finding that the statement “I am merely asking for an extension of time in which to file my motion” was not an oral motion. Id. at 727, 729. The language in Hulson was much clearer, and the trial court in that case, unlike this one, had rejected the movant’s interpretation of the language. Likewise, plaintiffs cannot rely on Mr. Cohen’s statement that he could not comply with the ten-day rule; Mr. Cohen’s opinion of the effect of his actions is not controlling. Plaintiffs also argue that the oral statement cannot be viewed as a motion because it was not filed or served and because it was not supported by a memorandum. As plaintiffs note, Local Civil Rule 3(b) of the Southern District of New York contemplates written support for motions: Upon any motion the moving party shall serve and file with the motion papers a memorandum setting forth the points and authorities relied upon.... Failure to comply may be deemed sufficient cause for the denial of the motion or the granting of the motion by default. Federal Rule 7(b), however, does not require that all motions be supported by a writing: An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is" }, { "docid": "23245308", "title": "", "text": "F.Supp. 296 (D.C.Cal.1977), modified on other grounds, 633 F.2d 123 (9th Cir. 1980); Gilroy v. Erie-Lackawanna R. R., 44 F.R.D. 3 (D.C.N.Y.1968); Hulson v. Atchison, T. & S. F. R. R., 27 F.R.D. 280 (N.D.Ill.1960), aff’d in part, dismissed in part, 289 F.2d 726 (7th Cir.), cert. denied, 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36 (1961). Finally, Sarah complains that the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure make it almost impossible for a party to seek relief from a default judgment order in the district court and to preserve the right to appeal from the judgment itself at a later date. FRCP Rule 55(c) directs a party seeking relief from a default judgment order to file a Rule 60(b) motion to vacate the judgment in the district court. Since Rule 60(b) motions do not toll the deadline for filing an appeal, the party must also file a notice of appeal in the district court within 30 days of the entry of the default judgment order. According to Sarah, once the appeal is filed, the district court loses jurisdiction of the Rule 60(b) motion, even though the motion was filed prior to the notice of appeal. Consequently, Sarah argues that a person seeking relief from a default judgment order must either abandon the right to appeal the order or abandon the right to seek relief in the district court. Sarah suggests that the only way to avoid the inequity inherent in this situation is to regard a Rule 60(b) motion filed within 10 days of the default judgment order as a Rule 59(e) motion which tolls the 30-day appeals period. The problem which Sarah presents to us has been successfully resolved by this court and others without upsetting the structure or disturbing the harmony of the federal rules. Until recently, most circuits adhered to the view that the district court lost jurisdiction of a Rule 60(b) motion once a notice of appeal had been filed. See 11 Wright & Miller, Federal Practice and Procedure § 2873 at 263-65 (1973). Persistent parties could then" }, { "docid": "3234700", "title": "", "text": "that its motion to set aside the verdict “was intended to be a motion for judgment in its favor or for a new trial” and that “[o]bviously respondent did not merely want the verdict to be set aside but wanted the relief that invariably follows such a setting aside on the grounds urged: a judgment in its favor or a new trial.” The defect in this argument is that respondent’s motions cannot be measured by its unexpressed intention or wants. Neither the trial judge nor the Court of Appeals appears to have treated the motion to set aside the verdict as asking for anything but that. And surely petitioner is not to have her opportunity to remedy any shortcomings in her case jeopardized by a failure to fathom the unspoken hopes of respondent’s counsel. Respondent’s motion should be treated as nothing but what it actually was, one to set aside the verdict — not one to enter judgment notwithstanding the verdict. A similar result was reached by the Seventh Circuit in Hulson v. Atchison, T. & S.F. Ry. Co., 289 F.2d 726, 729 (7th Cir.), cert. denied, 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36 (1961) wherein the Court stated: The 10 day limit for filing a motion for new trial fixed in Rule 59(b) cannot be enlarged under Rule 6(b), except as provided in subsection (e) of Rule 59, and such exception has no application to the situation before us here. * * sis * * * In order to avoid the application of the foregoing rules, plaintiffs urge this court to treat the motion for extension “to amend their motion for a new trial,” served on June 16, 1960, as a motion for a new trial. The trial court did not err in rejecting this contention. Plaintiffs’ motion “cannot be measured by its unexpressed intention or wants.” It “should be treated as nothing but what it actually was,” one to amend a motion for a new trial which was not on file and was never timely filed. Johnson v. New York, N.H. & H.R. Co. [1952] supra," }, { "docid": "14164598", "title": "", "text": "the opposing party’s statement. Local Rule 56.1(c); Omnipoint Communications, Inc. v. City of White Plains, 175 F.Supp.2d 697, 700 (S.D.N.Y.2001). Defendants have failed to respond to plaintiffs Rule 56.1 Statement of Material Facts. Therefore, the facts set forth in Omnipoint’s Rule 56.1 Statement are deemed admitted by defendants. Fed.R.Civ.P. 56(e) provides that “opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to matters stated therein.” An attorney’s affidavit which is not based on personal knowledge of the relevant facts should be accorded no weight on a motion for summary judgment. See Wyler v. United States, 725 F.2d 156, 160 (2d Cir.1983). When an attorney’s affirmation does not comply with Rule 56(e), the court should strike the portions thereof which are not made upon the affiant’s personal knowledge, contain inadmissible hearsay or make conclusory statements. See Hollander v. American Cyanamid Co., 172 F.3d 192, 198 (2d Cir.), cert. denied, 528 U.S. 965, 120 S.Ct. 399, 145 L.Ed.2d 311 (1999); United States v. Private Sanitation Industry Assoc. of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d Cir.), cert. denied sub nom, 516 U.S. 806, 116 S.Ct. 50, 133 L.Ed.2d 15 (1995). William Florence, Esq. submitted an affidavit — the only submission in response to plaintiffs motion — in opposition to plaintiffs motion for summary judgment. This affidavit is filled with conclusory statements of law and fact that could not be in Mr. Florence’s personal knowledge, and are not supported by factual evidence. Paragraphs 3 — 9, 11 — 18 and 20 — 21, to the extent that they contain conclusory statements of law or information not possibly based on personal information, are stricken and will be disregarded. B. Pertinent Facts The facts set forth below are taken from plaintiffs Rule 56.1 statement. Nonetheless, they will be viewed in a light most favorable to defendants, the non-moving party. Omnipoint is a provider of wireless telecommunication services, licensed by the Federal Communications Commission to construct, maintain and operate a Personal Communications Service (“PCS”) system" }, { "docid": "17238577", "title": "", "text": "day appeal period), plaintiff filed a separate suit alleging the same facts he had sought to present in his second amended complaint. After this other action had been pending for about two and one-half months plaintiff took a voluntary non-suit. About one month thereafter he sought to reopen the original suit by filing the instant motion under Rule 60(b). There can be little doubt that plaintiff attempted to use Rule 60(b) as a substitute for the appeal he deliberately chose not to take. This he cannot do. Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950). Rule 60(b) provides for extraordinary relief and may be invoked only upon a showing of exceptional circumstances. The district court did not abuse its discretion in denying relief under that rule in this case. John E. Smith’s Sons Co. v. Lattimer Foundry & Mach. Co., 3 Cir., 239 F.2d 815, 817 (1956). We have had occasion to reaffirm this principle in recent decisions. Hulson v. Atchison, T. & S. F. Ry. Co., 7 Cir., 289 F.2d 726, 730 (1961), cert. denied, 368 U.S. 835, 82 S.Ct. 61, 7 L.Ed.2d 36; Nugent v. Yellow Cab Company, 7 Cir., 295 F.2d 794, 796 (1961), cert. denied, 82 S.Ct. 844. For the foregoing reasons, we hold that the district court did not abuse its discretion in denying plaintiff’s motion under Rule 60(b) to vacate the final judgment dismissing this action. On its facts, the instant case is completely devoid of the situations usually found by the courts to justify relief under Rule 60(b). The order of the district court appealed from is affirmed. Affirmed. . “Rule 60. Relief from Judgment or Order & * * * * '“(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for" }, { "docid": "22296945", "title": "", "text": "time strictures established in 59(e). . Rule 6(d) of the Federal Rules of Civil Procedure states: “When a motion is supported by affidavit, the affidavit shall be served with the motion....” If, as here, a motion is complete without supporting affidavits, there is no reason to determine whether compliance with this filing requirement is jurisdictional when the affidavits are necessary to make the motion complete. We note, however, the position of the Seventh Circuit in Schy v. Susquehanna Corp., 419 F.2d 1112 (7th Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970). In Schy, the Seventh Circuit held that when the plaintiff did not complain of untimeliness of filing affidavits at the district court level, any objection based on that untimeliness was waived on appeal. Id. at 1116. It is questionable whether any proper objection to the untimeliness of these affidavits was raised at trial. Clearly, the defendant-appellees did not object to the late filing of the affidavits. They commented only that the affidavits came too late to substantively oppose the summary judgment. That is irrelevant to the 59(e) motion. A defendant who is not a party to this appeal questioned the timeliness of the affidavits under Rule 59(c) of the Federal Rules of Civil Procedure. Rule 59(c) relates to filing affidavits to support a motion for new trial, and does not apply to a 59(e) motion. Because we hold, however, that the 59(e) motion was complete without the affidavits we need not determine whether the 59(c) assertion was sufficient to preserve the question of timeliness for appeal. . The defendants cite Durkin v. Taylor, 444 F.Supp. 879, 889-90 (E.D.Va.1977); Erickson Tool Co. v. Balas Collet Co., 277 F.Supp. 226, 234 (N.D.Ohio 1967), aff’d., 404 F.2d 35 (6th Cir. 1968); Chastain v. Kelley, 510 F.2d 1232, 1238 n.7 (D.C.Cir.1975), for the proposition that a 59(e) motion is not proper if it advances no new grounds in seeking to vacate a judgment. None of these cases involved the question of whether the motion tolled the running of time to file notice of appeal. All were concerned with" }, { "docid": "5726378", "title": "", "text": "in Rule 6(a) of the Federal Rules of Civil Procedure, this motion was served within the time strictures established in 59(e). . Rule 6(d) of the Federal Rules of Civil Procedure states: “When a motion is supported by affidavit, the affidavit shall be served with the motion.. . . ” If, as here, a motion is complete without supporting affidavits, there is no reason to determine whether compliance with this filing requirement is jurisdictional when the affidavits are necessary to make the motion complete. We note, however, the position of the Seventh Circuit in Schy v. Susquehanna Corp., 419 F.2d 1112 (7th Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970). In Schy, the Seventh Circuit held that when the plaintiff did not complain of untimeliness of filing affidavits at the district court level, any objection based on that untimeliness was waived on appeal. Id. at 1116. It is questionable whether any proper objection to the untimeliness of these affidavits was raised at trial. Clearly, the defendant-appellees did not object to the late filing of the affidavits. They commented only that the affidavits came too late to substantively oppose the summary judgment. That is irrelevant to the 59(e) motion. A defendant who is not a party to this appeal questioned the timeliness of the affidavits under Rule 59(c) of the Federal Rules of Civil Procedure. Rule 59(c) relates to filing affidavits to support a motion for new trial, and does not apply to a 59(e) motion. Because we hold, however, that the 59(e) motion was complete without the affidavits we need not determine whether the 59(c) assertion was sufficient to preserve the question of timeliness for appeal. . The defendants cite Durkin v. Taylor, 444 F.Supp. 879, 889-90 (E.D.Va.1977); Erickson Tool Co. v. Balas Collet Co., 277 F.Supp. 226, 234 (N.D.Ohio 1967), aff’d., 404 F.2d 35 (6th Cir. 1968); Chastain v. Kelley, 510 F.2d 1232, 1238 n.7 (D.C.Cir.1975), for the proposition that a 59(e) motion is not proper if it advances no new grounds in seeking to vacate a judgment. None of these cases involved the" } ]

[ { "docid": "10128241", "title": "", "text": "ultimately did discharge Leffel at the follow-up meeting on April 8. The focus of the district court’s ruling, and the principal question that the parties address in this appeal, is whether Leffel has come forward with enough evidence to suggest that she was placed on probation and then discharged because of her perceived disability to avoid summary judgment. As in any other type of employment discrimination case, a plaintiff may establish that she was discharged in violation of the ADA by direct or indirect means. DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir.1995). Leffel points us to no direct proof that she was disciplined and then discharged because she has MS, and instead points to circumstantial evidence that she believes gives rise to that inference. The district court examined this evidence within the burden-shifting framework that the Supreme Court first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Although this analysis derives from Title VII cases, we saw no reason in DeLuca not to apply it to ADA claims (53 F.3d at 797); and our sister circuits have likewise found the analysis appropriate to this context. See Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61, 68 & n. 7 (3d Cir.1996) (collecting eases). Within the McDonnell Douglas framework, it falls to the plaintiff to first establish a prima facie case of discrimination. If she succeeds in doing so, the defendant must then articulate a legitimate, non-discriminatory reason for discharging her. At that juncture, the plaintiff must then establish that this proffered reason is really a pretext for discrimination. DeLuca, 53 F.3d at 797. A cautionary word is in order as to what kind of evidence the plaintiff must produce in order to establish a prima facie case. “[T]he prima facie case requires ‘evidence adequate to create an inference that an employment" } ]

[ { "docid": "21081643", "title": "", "text": "of discrimination or follow the burden-shifting method 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). Collier proceeds under the McDonnell Douglas burden-shifting framework. Under the McDonnell Douglas framework, a plaintiff must first state a prima facie case of discrimination. Collier contends that Budd’s reduction and restructuring of its sales force was a pretext for age discrimination. In reduction-in-force (RIF) cases, a plaintiff states a prima facie case by showing that “(1) he was in the protected age group, (2) he was performing to his employer’s legitimate expectations, (3) he was discharged, and (4) younger employees were treated more favorably.” Roper v. Peabody Coal Co., 47 F.3d 925, 926 (7th Cir.1995). If Collier successfully states a prima facie case, the burden shifts to Budd “to articulate a legitimate, non-discriminatory reason for discharging” him. Roper, 47 F.3d at 926; see also DeLuca v. Winer Industries, Inc., 53 F.3d 793, 797 (7th Cir.1995). An employer that has proffered a legitimate, non-discriminatory reason for the discharge is entitled to summary judgment unless the plaintiff presents evidence that the proffered reasons are pretexts for discrimination. DeLuca, 53 F.3d at 797. III. Prima Facie Case Both parties agree that Collier has satisfied the first three elements of the prima facie case: he is a member of the protected class, his job performance was satisfactory and he-was discharged. Budd argues, how ever, that Collier has failed to prove the fourth element: that younger employees were treated more favorably. The district court held that Collier failed to state a prima facie case because he did not prove that he was replaced by a younger employee. Collier believes that Budd’s original plan was to assign Ondos to the East/ South region and give Nemec the Mid-westyCentral, leaving Nemec with Collier’s old territory. This theory is supported by Ondos’ deposition testimony. Ondos testified that Donald Hutton, the National Sales Manager for Budd Polychem, asked him to move to the eastern region, but he refused because his “family didn’t want to move.” Regardless of what Budd’s original plan may" }, { "docid": "22214944", "title": "", "text": "v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir.1995). Accordingly, the familiar framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793-94, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for Title VII cases is equally applicable to discrimination claims under the Rehabilitation Act. Under the McDonnell Douglas burden shifting paradigm, plaintiff has the initial burden to make a prima facie showing of discrimination, but if s/he does so, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employment action. Id. at 802, 93 S.Ct. 1817. If the defendant meets this burden, the presumption of discriminatory action raised by the prima facie case is rebutted. Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). However, the plaintiff must then be afforded an opportunity to show that the employer’s stated reason for the employment action, such as plaintiffs rejection or separation, was pretextual. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. In order to prove the employer’s explanation is pretextual, the plaintiff must “cast[] sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication ... or ... allow[ ] the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.” Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir.1994). A plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either “(i) discrediting the employer’s proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.” . Id. at 764. Applied to this case, Wishkin must prove that he has a “disability” in order to meet the requirements of the first element of the prima facie case. The statute defines an “individual with a disability” as an individual who has (1) a physical or mental impairment which substantially limits one or more" }, { "docid": "13793989", "title": "", "text": "court found that Rooney had not identified a similarly situated but nondisabled employee who was treated more favorably and thus granted summary judgment for Koch Air on all of Rooney’s ADA claims. It then dismissed without prejudice Rooney’s remaining state law claims. II We review a district court’s grant of summary judgment de novo, construing all facts and drawing all reasonable inferences from those facts in favor of the non-moving party. Koszola v. Bd. of Educ. of Chi, 385 F.3d 1104, 1107 (7th Cir.2004). The ADA protects “qualified individuals with a disability” from discrimination in their employment, the hiring process, or promotions. 42 U.S.C. § 12112(a); see also Hoffman v. Caterpillar, Inc., 256 F.3d 568, 571-72 (7th Cir.2001). The statute defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). Because Rooney lacked direct evidence of discriminatory motive or intent, he relied on the familiar burden-shifting method outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in pursuing his claims. Id. at 802, 93 S.Ct. 1817; see also DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir.1995). He therefore must satisfy the four requirements for a prima facie case by submitting evidence at the summary judgment stage that, if believed, would show that: (1) he is disabled within the meaning of the ADA; (2) he was meeting his employer’s legitimate em ployment expectations; (3) he suffered an adverse employment action; and (4) similarly situated employees received more favorable treatment. Amadio v. Ford Motor Co., 238 F.3d 919, 924 (7th Cir.2001). If he is able to prove all four elements, the burden shifts to Koch Air to identify a non-discriminatory reason for its employment decision. Id. Although both the district court and Rooney focused their attention on the fourth element of the prima facie case, we think it preferable here to start with the first one: whether Rooney is “disabled,” in the special" }, { "docid": "364340", "title": "", "text": "of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Title VII provides, in pertinent part: It shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, be cause of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). The initial burden of proving a pri-ma facie case of discriminatory discharge rests with the plaintiff. McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Collins v. New York City Transit Auth. 305 F.3d 113, 118 (2d Cir.2002). To establish a prima facie case for discriminatory discharge based on race, national origin, or religion in violation of Title VII, a plaintiff must show: (1) membership in a protected class; (2) satisfactory job performance; (3) an adverse employment decision; and (4) circumstances surrounding the adverse employment action gave rise to an inference of discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. 1089; Collins, 305 F.3d at 118. If the plaintiff establishes a prima facie case, the burden shifts to the defendant, who then must “articulate some legitimate, non-discriminatory reason” for its employment decision. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Burdine, 450 U.S. at 253-54, 101 S.Ct. 1089. If the defendant “articulates a non-discriminatory reason, the McDonnell Douglas burden-shifting framework drops out of the picture.” Adeniji v. Admin, for Children Services, NYC, 43 F.Supp.2d 407, 420 (S.D.N.Y.1999) (citations omitted). Therefore, once the defendant asserts a legitimate reason for the termination, the burden then lies with the plaintiff to show that the defendant’s reason was in fact pretex-tual, and that discrimination was more likely than not the true reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817; James v. New York Racing Ass’n, 233 F.3d 149, 153-54 (2d Cir.2000). This Court’s analysis is" }, { "docid": "20535793", "title": "", "text": "individual claiming disability discrimination and/or hostile work environment based on disability still bears the burden of establishing a prima facie case. To establish a prima facie case of disability discrimination under the ADA, the employee must show that he (1) is a disabled person within the meaning of the ADA; (2) is qualified to perform the essential functions of his job, with or without reasonable accommodations, and (3) has been subjected to an adverse employment action as a result of discrimination. Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir.2010) (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.1999)); Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir.1998) (citation omitted). A discrimination claim under the ADA is analyzed under the familiar burden shifting of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir.2007). Under this framework, initially, the plaintiff bears the burden of establishing a prima facie case of discrimination. Id. (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If the plaintiff successfully establishes a prima facie case, the burden then shifts to the employer to articulate some legitimate non-discriminatory reason for the adverse employment action. Id. Once the employer carries its burden, the burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons proffered by the employer were merely a pretext for discrimination, and not the true motivation for the adverse employment action. Id. (citing Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089; McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817). To succeed on a claim for harassment based on disability, the plaintiff must show that: “(1) [he] is a qualified individual with a disability under the ADA; (2) [he] was subject to unwelcome harassment; (3) the harassment was based on h[is] disability or a request for accommodation; (4) 'the harassment was sufficiently severe or pervasive to" }, { "docid": "22354537", "title": "", "text": "granted, finding that Aragon failed to make out a prima facie case of race discrimination. This timely appeal followed. II Aragon argues that Republic terminated him because of his race. Under Title VII, an employer may not “discriminate against an individual with respect to his ... terms, conditions, or privileges of employment” because of his race. 42 U.S.C. § 2000e-2(a). This provision makes “disparate treatment” based on race a violation of federal law. The proper legal framework for determining whether Aragon’s claim should survive summary judgment is the familiar burden-shifting scheme set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, Aragon must first establish a prima facie case of racial discrimination. Id. at 802, 93 S.Ct. 1817. In particular, he must show that (1) he belongs to a protected class, (2) he was qualified for the position, (3) he was subjected to an adverse employment action, and (4) similarly situated non-white individuals were treated more favorably. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If Aragon succeeds in establishing a prima facie case, the burden of production shifts to Republic to articulate a legitimate, nondiscriminatory reason for terminating Aragon’s employment. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If Republic does so, Aragon must demonstrate that Republic’s articulated reason is a pretext for unlawful discrimination by “ ‘either directly persuading the court that a discriminatory reason more likely motivated the employer or in directly by showing that the employer’s proffered explanation is unworthy of credence.’ ” Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir.2000) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). However, Aragon’s evidence must be both specific and substantial to overcome the legitimate reasons put forth by Republic. E.g., Bergene v. Salt River Project Improvement & Power Dist., 272 F.3d 1136, 1143 (9th Cir.2001); Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.1998); Bradley v. Harcourt, Brace &" }, { "docid": "23377439", "title": "", "text": "the McDonnell Douglas, Title VII burden-shifting analysis. See Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir.1995) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)). Under this framework, a plaintiff must first make a prima facie showing of discrimination by establishing that: (1) He is disabled or is regarded as disabled; (2) he is qualified for the job; (3) he was subjected to an adverse employment action on account of his disability; and (4) he was replaced by or treated less favorably than non-disabled employees. See Burch v. Coca-Cola Co., 119 F.3d 305, 320 (5th Cir.1997), cert. denied 522 U.S. 1084, 118 S.Ct. 871, 139 L.Ed.2d 768 (1998). Once the plaintiff makes his prima facie showing, the burden then shifts to the defendant-employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. Once the employer articulates such a reason, the burden then shifts back upon the plaintiff to establish by a preponderance of the evidence that the articulated reason was merely a pretext for unlawful discrimination. See Daigle, 70 F.3d at 396. As noted above, the threshold element of a prima facie showing of discrimination under the ADA is a showing that the plaintiff either is, or is regarded as being disabled. Failure to establish an actual or perceived disability is thus fatal to a plaintiffs case. The magistrate judge based her conclusion that Mclnnis failed to set forth a prima facie case of ADA discrimination on two sub-determinations: (1) that Mclnnis was neither actually disabled nor regarded as disabled; and (2) that he was not terminated on account of the alleged disability or perception of disability. We confíne our consideration of this case to those two issues. A. Is Mclnnis either disabled or “regarded as” disabled? The magistrate judge properly identified the relevant standards for defining and determining when one is disabled under the ADA. A “disability” under the ADA is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; a record of" }, { "docid": "16137006", "title": "", "text": "by yet another physician, who placed him on a permanent lifting restriction of 30 pounds. After exhausting his administrative remedies, Allen initiated the present action in federal district court, alleging, among other things, that Interior refused to employ him from December of 1995 through July of 1996 because he was disabled or was perceived to be disabled, thus violating the ADA. Interior moved for summary judgment and later also moved to strike from the summary judgment record the affidavit of vocational expert Kaver, which Allen had included in his memorandum opposing summary judgment. The district court struck Kaver’s affidavit-as-untimely and entered summary judgment in favor of Interior. Allen appeals both rulings. II. We assess Allen’s claim of discrimination under the ADA pursuant to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Young v. Wamer-Jenkinson Co., 152 F.3d 1018, 1021 (8th Cir.1998) (applying McDonnell Douglas analysis to claims that do not put forth any direct evidence of discrimination). Under this framework, Allen must first establish a prima facie case of discrimination by showing that: (1) he is disabled within the meaning of the ADA; (2) he is qualified to perform the essential functions of his job, with or without accommodation; and (3) he suffered an adverse employment action under circumstances which give rise.to an inference of unlawful discrimination. See id. at 1021-22. If this showing is made, a rebuttable presumption of discrimination emerges and Interior must articulate a legitimate, non-discriminatory reason for any adverse employment action taken against Allen. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir.1999) (en banc). If Interior proffers such a reason, Allen must demonstrate that this non-discriminatory reason is merely a pretext for intentional discrimination. See id. In granting summary judgment, the district court found that Allen failed to present a prima facie case of discrimination because he did not establish an inference of intentional discrimination, as is required by the third element. The court also found that, even if Allen had set forth a prima facie case, Interior’s proffered" }, { "docid": "17034053", "title": "", "text": "of his disability. He has chosen the indirect, burden shifting approach of McDonnell Douglas to attempt to prove discrimination. A' plaintiff who uses this approach must make out a prima facie case consisting of three elements: “(1) he is a member of a protected class; (2) his work performance met the employer’s legitimate job expectations; [and] (3) his employment was terminated.”. DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir.1995) (approving McDonnell Douglas approach for ADA cases). DeLuca, being a reduction-in-force case, also required the plaintiff to show that other employees not in the protected class were treated more favorably. See id. However, we have not required this approach in cases outside the reduction-in-force context. See, e.g., Leffel v. Valley Fin. Servs., 113 F.3d 787, 793 (7th Cir.), cert. denied, — U.S. -, 118 S.Ct. 416, 139 L.Ed.2d 318 (1997). If the plaintiff successfully establishes the elements of the prima facie case, the burden shifts to the employer to articulate a nondiscriminatory reason for discharging the plaintiff. If the employer can articulate such a reason, the burden returns to the plaintiff to show that the employer’s proffered reason is a mere pretext for discriminatory action. See DeLuca, 53 F.3d at 797. The district court held that McCreary has not created a genuine issue of material fact as to the first element of the prima facie ease, being a member of the protected class, because he certified to the Social Security Administration that he is unable to work. Because it made that determination, the district court did not address McCreary’s discriminatory discharge claim further. Because we have determined that McCreary is not estopped from asserting that he is a qualified individual with a disability, and because McCreary raised a genuine issue of material fact as to that element, we vacate the district court’s decision granting summary judgment to LOF and remand this issue for further proceedings. We express no opinion on the merits, of LOF’s motion for summary judgment as to discriminatory discharge except to say that McCreary has pointed to a genuine issue of material fact as to" }, { "docid": "14776068", "title": "", "text": "of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). E.g., Braverman v. Penobscot Shoe Co., 859 F.Supp. 596, 603 (D.Me.1994). Applying this framework, the court must first consider whether plaintiff can meet her initial burden of establishing a prima facie case of discrimination. Udo v. Tomes, 54 F.3d 9, 12 (1st Cir.1995). If plaintiff can establish the requisite prima facie case, the burden of production shifts to the defendant, who must then articulate a legitimate, nondiscriminatory reason for plaintiffs termination. Id. Once the employer’s burden has been met, “the plaintiff must introduce suffi cient evidence to support two findings: (1) that the employer’s articulated reason for laying off the plaintiff is a pretext, and (2) that the true reason is discriminatory.” Id. at 13. a. The Prima Facie Case In order to make out a prima facie case of employment discrimination under the ADA, plaintiff must show that: (1) she was “disabled” as that term is defined by the ADA; (2) she was qualified, with or without accommodation, to do her job as an assistant professor of religious studies; (3) she was discharged; and (4) she was replaced by. a non-disabled person. Sherman v. Optical Imaging Sys., Inc., 843 F.Supp. 1168, 1181 (E.D.Mich.1994). As the First Circuit has recently held, “[i]n handicap discrimination cases brought pursuant to federal law, the claimant bears the burden of proving each element of her chain.” Cook v. Dep’t of Mental Health, Retardation, and Hosps., 10 F.3d 17, 22 (1st Cir.1993) (citations omitted). The ADA “prohibits discrimination ‘against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.’” Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir.1995) (quoting 42 U.S.C. § 12112(a)) (footnote omitted). “Disability” under the ADA means, with respect to an individual— (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" }, { "docid": "15341589", "title": "", "text": "Cir.1995)). The prima facie case for ADA disparate treatment is: (1) the plaintiff is disabled within the meaning of the ADA; (2) the plaintiffs work performance meets the employer’s legitimate expectations; (3) the plaintiff suffered an adverse employment action; and (4) the circumstances indicate that it is more likely than not that the plaintiffs disability was the reason for the adverse employment action. Spath v. Hayes Wheels Int’l-Indiana, Inc., 211 F.3d 392, 396 (7th Cir.2000). Davis can prove her disparate treatment case with either direct evidence of discrimination or indirectly through the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See De Luca, 53 F.3d at 797; see also Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir.2000) (analyzing the McDonnell Douglas test in an ADA/age discrimination case). Direct evidence of discrimination is “smoking gun” evidence, such as “We fired you because of your disability.” Robin, 200 F.3d at 1088. Because such evidence is rare, a plaintiff can also proceed using indirect evidence of discrimination and the McDonnell Douglas burden shifting approach. Id. Under the burden shifting method, a plaintiff raises a presumption of discrimination by proving her prima facie case by a preponderance of the evidence. See id. The burden then shifts to the employer to articulate a legitimate non-discriminatory reason for its action. Id. If the employer does so, the presumption of discrimination disappears, and the plaintiff must prove by a preponderance of the evidence that the employer’s stated reasons are a pretext for intentional discrimination. Id. Pretext means a lie. Specifically, the plaintiff must demonstrate that the employer’s stated reason is phony or completely lacking a factual basis. Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1012-13 (7th Cir.2000); Jordan v. Summers, 205 F.3d 337, 343 (7th Cir.2000). As the Seventh Circuit pointed out in Robin, the burden shifting framework is not a rigid analysis, rather it is tool for the court to determine the need for a trial. Robin, 200 F.3d at 1088-89. If a plaintiff does not have direct or indirect evidence" }, { "docid": "11749849", "title": "", "text": "Discrimination In an employment discrimination case such as this one, courts employ 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). First, plaintiff must prove, by a preponderance of the evidence, a prima facie case of discrimination. Luciano v. Olsten Corp., 110 F.3d 210, 215 (1997) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510 n. 3, 113 S.Ct. 2742, 2748 n. 3, 125 L.Ed.2d 407 (1993); Texas Dep’t of Community Affairs v. Burdine 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981)). If plaintiff is able to state a prima facie case of discrimination, “the burden of production then shifts to the defendant to articulate a nondiscriminatory reason for the challenged employment decisions-” Luciano, 110 F.3d at 215 (citing Burdine, 450 U.S. at 254, 101 S.Ct. at 1094). “[0]nce the defendant proffers a legitimate motive, the presumption of discrimination triggered by the pri-ma facie case no longer operates.” Id. (citing St. Mary’s, 509 U.S. at 507, 113 S.Ct. at 2747). Finally, “the plaintiff has the opportunity to demonstrate that defendant’s articulated reason for its decision is in fact a pretext for discrimination and retains the ultimate burden of persuasion to demonstrate by a preponderance of the evidence that the challenged employment decision was the result of intentional discrimination.” Id. (citing St. Mary’s, 509 U.S. at 507-08, 113 S.Ct. at 2747-48); see also Hendler v. Intelecom USA, Inc., 963 F.Supp. 200, 203-04 (E.D.N.Y.1997) (applying McDonnell Douglas analysis to ADA claim). 1. Burke’s Claim of Disability To state a prima facie case under the ADA, Burke must show: “(1) [he] is a disabled person; (2)[he] is otherwise qualified to perform [his] job; and (3)[he] was discharged because of his disability.” Schaefer v. State Insurance Fund, No. 95 CV 0612, 1998 WL 126061 at *5 (S.D.N.Y.1998) (citing Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 383 (2d Cir.1996)). The ADA defines disability as “a physical or mental impairment that substantially limits one or major life activities of such individual;” “a" }, { "docid": "13793990", "title": "", "text": "outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in pursuing his claims. Id. at 802, 93 S.Ct. 1817; see also DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir.1995). He therefore must satisfy the four requirements for a prima facie case by submitting evidence at the summary judgment stage that, if believed, would show that: (1) he is disabled within the meaning of the ADA; (2) he was meeting his employer’s legitimate em ployment expectations; (3) he suffered an adverse employment action; and (4) similarly situated employees received more favorable treatment. Amadio v. Ford Motor Co., 238 F.3d 919, 924 (7th Cir.2001). If he is able to prove all four elements, the burden shifts to Koch Air to identify a non-discriminatory reason for its employment decision. Id. Although both the district court and Rooney focused their attention on the fourth element of the prima facie case, we think it preferable here to start with the first one: whether Rooney is “disabled,” in the special sense that the ADA-uses that term. If he is not entitled to protection under this statute, then there is no need to reach the later parts of the inquiry. An individual can prove that she is disabled for ADA purposes in one of three ways: (1) she has a physical or mental impairment that substantially limits one or more major life activities; (2) she has a record of such an impairment; or (3) she is regarded as having such an impairment by her employer. 42 U.S.C. § 12102(2); Sutton v. United Air Lines, 527 U.S. 471, 478, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Rooney pursued his claims against Koch Air under all three methods. Not all impairments or conditions qualify as a disability within the meaning of the ADA. Dalton v. Subaru-Isuzu Auto., 141 F.3d 667, 675 (7th Cir.1998). To be disabled, an individual must be so limited in one or more major life activities that she is impaired in her ability to “perform the variety of tasks central to most people’s lives.” Toyota" }, { "docid": "17610384", "title": "", "text": "870 F.2d 578, 582 (11th Cir.1989)). Corning is not relying on such direct evidence of discrimination. When a plaintiff attempts to prove intentional discrimination using circumstantial evidence, the Court must apply the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Schoenfeld, 168 F.3d at 1267; see Cremeens v. City of Montgomery, Ala., 427 Fed.Appx. 855, 857 (11th Cir.2011) (‘We evaluate ADA discrimination claims under the McDonnell Douglas burden-shifting analysis.”). Under this framework, the plaintiff has the initial burden of establishing a prima facie case of discrimination. If he meets that burden, then an inference arises that the challenged action was motivated by a discriminatory intent. The burden then shifts to the employer to “articulate” a legitimate, non-discriminatory reason for its action. If the employer successfully articulates such a reason, then the burden shifts back to the plaintiff to show that the proffered reason is really pretext for unlawful discrimination. Schoenfeld, 168 F.3d at 1267 (internal citations omitted). To establish a prima facie case of ADA discrimination, Corning must show that he: (1) is disabled; (2) is a qualified individual; and (3) was subjected to unlawful discrimination because of his disability. Greenberg, 498 F.3d at 1263; Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir.2004); Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1226 (11th Cir.1999). The ADA defines a “disability” 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 an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2) (2008). [T]he term “substantially limits” means “[ujnable to perform a major life activity that the average person in the general population can perform” or “[sjignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or" }, { "docid": "17075996", "title": "", "text": "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 he was fired, (1) he was a disabled person as defined by the ADA; (2) he was qualified, with or without reasonable accommodation, to perform the essential functions of his job; and (3) he was fired because of his disability. Zwygart, 483 F.3d at 1090. The district court held that Carter did not meet elements one or three. We disagree, and conclude that Carter has established that a genuine dispute of material fact exists as to all three elements. a. Whether Carter was “disabled” under the ABA A person is “disabled” under the ADA if he has “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). To satisfy this definition, “a plaintiff must (1) have a recognized impairment, (2) identify one or more appropriate major life activities, and (3) show the impairment substantially limits one or more of those activities.” Berry v. T-Mobile USA, Inc., 490 F.3d 1211, 1216 (10th Cir.2007) (internal quotation marks omitted). Whether a plaintiff has met the first two requirements are questions" }, { "docid": "9857272", "title": "", "text": "Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). B. ADA Claim The ADA states that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... discharge of employees.42 U.S.C. § 12112(a). When, as here, there is no direct evidence of discrimination, a plaintiff must instead attempt to prove a prima facie case under the familiar scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See DeLuca v. Winer Industries, 53 F.3d 793, 797 (7th Cir.1995). A prima facie case under the ADA is established when a plaintiff proves that: (1) he belongs to the protected group; (2) he performed his job satisfactorily; (3) he was subjected to an adverse employment action; and (4) similarly situated employees received more favorable treatment. See DeLuca, 53 F.3d at 797. If the plaintiff fails to prove any of these elements, his claim fails. See id. However, if the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the defendant’s employment action. See id. If the defendant clears this hurdle, the burden once again shifts to the plaintiff to show that the defendant’s offered reason is merely pretextual.. See id. Here, there is no need to reach the later inquiries of the McDonnell Douglas analysis because Amadio has failed to prove even the first element of a prima facie case — that he is a member of the protected group. For the purpose of showing that he is a member of the ADA’s protected group, a plaintiff must establish that he is “an individual with a disability who, with or without reasonable accommo dation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). Stated another way, 'to prove membership in the ADA’s protected class, a plaintiff must establish up to three elements: (1) a disability; (2) the ability to perform the essential functions of the employment" }, { "docid": "17518240", "title": "", "text": "evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed,2d 202 (1986). In addition to his age discrimination claim, Aka in effect makes two distinct disability discrimination claims. The first is based on the theory that WHC engaged in disparate treatment in declining to hire him for the Pharmacy Technician position; the second, on the theory that WHC discriminated against him in declining to grant him the reasonable accommodation of reassignment to a vacant position once he became disabled. We will first analyze Aka’s disparate treatment disability discrimination claim (together with his age discrimination claim) under the familiar three-part protocol set forth by the Supreme Court in McDonnell-Douglas Corp. v. Green, 477 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir.1995) (finding that the McDonnellr-Douglas framework applies to ADA cases); see also Barth v. Gelb, 2 F.3d 1180, 1186 (D.C.Cir.1993) (finding that in cases under a related statute, the Rehabilitation Act, it is appropriate to apply the McDonnell-Douglas framework to claims that an employer has acted with discriminatory intent). We then consider Aka’s reasonable-accommodation elaim, which is not subject to analysis under McDonnell-Douglas, but has its own specialized legal standards. Cf. Barth, 2 F.3d at 1186 (drawing a similar distinction under the Rehabilitation Act). A. Disparate Treatment Under the McDonnell-Douglas framework, the complainant must first establish a prima facie case of prohibited discrimination. See McDonnell-Douglas, 477 U.S. at 802, 93 S.Ct. 1817. Once he has done so, the burden then shifts to the employer to articulate legitimate, nondiseriminatory reasons for the challenged employment decision. See id. Should the employer succeed in presenting such reasons, the burden then shifts back to the complainant, who then has an opportunity to discredit the employer’s explanation. See id. at 804-05, 93 S.Ct. 1817. In Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the Court held that, in producing nondiseriminatory reasons for its challenged action," }, { "docid": "22214943", "title": "", "text": "advancement.” To establish a prima facie case of discrimination under the Rehabilitation Act, a plaintiff must initially show, “(1) that he or she has a disability; (2) that he or she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that he or she was nonetheless terminated or otherwise prevented from performing the job.” Id. at 831. The existence of a prima facie case of employment discrimination is a question of law that must be decided by the court but the prima facie test remains flexible and must be tailored to fit the specific context in which it is applied. Sarullo v. United States Postal Serv., 352 F.3d 789, 797-98 (3d Cir.2003) (per curiam). We have stated that “the ADA, ADEA and Title VII all serve the same purpose — to prohibit discrimination in employment against members of certain classes. Therefore, it follows that the methods and manner of proof under one statute should inform the standards under the others as well.” Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir.1995). Accordingly, the familiar framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793-94, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for Title VII cases is equally applicable to discrimination claims under the Rehabilitation Act. Under the McDonnell Douglas burden shifting paradigm, plaintiff has the initial burden to make a prima facie showing of discrimination, but if s/he does so, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employment action. Id. at 802, 93 S.Ct. 1817. If the defendant meets this burden, the presumption of discriminatory action raised by the prima facie case is rebutted. Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). However, the plaintiff must then be afforded an opportunity to show that the employer’s stated reason for the employment action, such as plaintiffs rejection or separation, was pretextual. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. In order to prove the employer’s explanation is" }, { "docid": "21081642", "title": "", "text": "Budd then restructured its sales operations to accommodate a reduced force. Previously, Budd had divided the country into five regions (East, South, Midwest, Central, and West/Southwest), with each salesman responsible for a single region. After reducing its sales force, Budd combined several of the regions. Collier’s region, the Midwest, was merged with the Central, Ondos’ region. Ondos was assigned to the new Mid-wesVCentral region. The East and South (Joyce’s and Shaw’s regions, respectively) were merged. Mark Nemec (age 39), who was Budd’s national field service representative at the time, became the new sales representative for the East/South region. Chil-cote remained responsible for the West/Southwest region. Nemec’s previous job as national field service representative was eliminated, and the sales representatives took responsibility for performing field service in their various regions. Collier argues that by implementing this plan, Budd discriminated against him and in favor of the younger employees. II. McDonnell Douglas Framework A plaintiff in an age discrimination ease may attempt to prove his claim in one of two ways. He may either present direct evidence of discrimination or follow the burden-shifting method 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). Collier proceeds under the McDonnell Douglas burden-shifting framework. Under the McDonnell Douglas framework, a plaintiff must first state a prima facie case of discrimination. Collier contends that Budd’s reduction and restructuring of its sales force was a pretext for age discrimination. In reduction-in-force (RIF) cases, a plaintiff states a prima facie case by showing that “(1) he was in the protected age group, (2) he was performing to his employer’s legitimate expectations, (3) he was discharged, and (4) younger employees were treated more favorably.” Roper v. Peabody Coal Co., 47 F.3d 925, 926 (7th Cir.1995). If Collier successfully states a prima facie case, the burden shifts to Budd “to articulate a legitimate, non-discriminatory reason for discharging” him. Roper, 47 F.3d at 926; see also DeLuca v. Winer Industries, Inc., 53 F.3d 793, 797 (7th Cir.1995). An employer that has proffered a legitimate, non-discriminatory reason for the discharge is" }, { "docid": "16317857", "title": "", "text": "court also found no evidence to support Taylor’s contention that relevant employment decisions were motivated by improper animus. II. We review the district court’s grant of summary judgment de novo. See Henerey v. City of St. Charles, 200 F.3d 1128, 1131 (8th Cir.1999). Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See id.; Fed.R.Civ.P. 56(c). Taylor’s discrimination claims are analyzed under the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Floyd v. Missouri Dept. of Soc. Servs., 188 F.3d 932, 936 (8th Cir.1999). Initially, Taylor must establish a prima facie case of discrimination. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action, and if it succeeds in meeting its burden of production, then the plaintiff must show that the reason put forth is pretextual. At all times the burden of persuasion remains with the plaintiff. See id. To establish a prima facie case of discrimination, Taylor must show (1) that she had a disability within the meaning of the ADA, (2) that she was qualified to perform the essential functions of her job, with or without reasonable accommodation, and (3) that.she suffered an adverse employment action because of her disability. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir.1999) (en banc). Under the ADA, disability is defined 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). According to the regulations that guide the interpretation of the ADA, an impairment is “substantially limiting” if it renders an individual unable to perform a major life activity that the average person in the general population can perform, or if it significantly restricts the condition, manner, or duration under" } ]

[ { "docid": "8268280", "title": "", "text": "actions enforcing Title IV rights, and McCabe’s motion to intervene must fall on this ground. Stein v. Wirtz, 366 F. 2d 188, 189 (10th Cir. 1966); Mamula v. United Steelworkers of America, 304 F.2d 108 (3d Cir. 1962). Furthermore, conceding that McCabe’s interests are vitally affected by the conduct of this litigation, he has not demonstrated that the Secretary of Labor is not adequately representing his interests under Rule 24(a) (2). Even if McCabe could somehow prove that the Secretary of Labor is not doing an adequate job, his motion would still be insufficient under the language of the Stein case. “Although appellant’s subjective dissatisfaction with the Secretary’s prosecution of this action is completely understandable, yet we are constrained to agree that the District Court was without jurisdiction to permit his intervention in a Title IV action. The Act confers upon the Secretary of Labor the exclusive right to bring civil actions against labor organizations for violations of members’ rights in union elections and election procedures. 29 U.S.C. §§ 482(b), 483; Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190. There being no way for appellant to prosecute this type of action by original suit, he cannot be permitted to do so by intervention, for Rule 24(a) (2) cannot be construed to extend federal jurisdiction. Fed.R. Civ.P. 82; Bantel v. McGrath, 10 Cir., 215 F.2d 297.” Stein v. Wirtz, supra, p. 189. McCabe has not met either of the two tests under Rule 24(a) and, therefore, his motion to intervene must fail. It is so ordered." } ]

[ { "docid": "12705247", "title": "", "text": "of the Labor-Management Reporting and Disclosure Act of 1959, 397, 398 (1959) (hereinafter “Leg.Hist.”). See LMRDA § 2, 29 U.S.C. § 401; Wirtz v. Local 153, Glass Bottle Blowers Association, 389 U.S. 463, 469-70, 88 S.Ct. 643, 647, 19 L.Ed.2d 705 (1968); Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819 (1960). The primary goal of Title IV of the LMRDA “is to insure ‘free and democratic’ [union] elections.” Wirtz v. Bottle Blowers, 389 U.S. at 470, 88 S.Ct. at 648. Title IV also regulates procedures for the removal of union officers. This is our first occasion to examine the reach of these provisions. Union procedures for the removal of officers are governed specifically by § 401(h) of the LMRDA, 29 U.S.C. § 481(h). It states: If the Secretary, upon application of any member of a local labor organization, finds after hearing in accordance with the Administrative Procedure Act that the constitution and bylaws of such labor organization do not provide an adequate procedure for the removal of an elected officer guilty of serious misconduct, such officer may be removed, for cause shown and after notice and hearing, by the members in good standing voting in a secret ballot conducted by the officers of such labor organization in accordance with its constitution and bylaws insofar as they are not inconsistent with the provisions of this title. It is clear that this section grants no authority for allowing the Secretary to intervene in union removal proceedings in the absence of a finding that the union’s constitution and bylaws provide an inadequate removal procedure. This is in contrast to § 401(e)’s regulation of union elections, where it is required that “[t]he election shall be conducted in accordance with the constitution and bylaws of such organization insofar as they are not inconsistent with the provisions of this title.” See also § 401(f). The Secretary admits that § 401(h), standing alone, does not regulate a union whose removal procedures, as written, are adequate. However, the Secretary argues that Title IV has a “dual procedure” for removing union" }, { "docid": "13594318", "title": "", "text": "NLRB, 386 U.S. 612, 619 [87 S.Ct. 1250, 1254, 18 L.Ed.2d 357]. The LMRDA is no exception. Wirtz v. Local 153, Glass Bottle Blowers Ass'n, AFL-CIO, 389 U.S. 463, 468, 88 S.Ct. 643, 646, 19 L.Ed.2d 705 (1968) (footnote omitted). The precise scope of Title IV’s exclusivity in relation to Title I is obscured by the earlier reference in § 483 to “existing rights and remedies.” It can be argued that § 483 does not impinge upon Title I at all because Title I is not an existing right or remedy within the meaning of § 483. This argument, which we do not adopt but merely posit, can be derived from a reading of the legislative history: Congress contemplated only that state law rights and remedies would be preempted by Title IV when it was considering the enactment of § 483/ See infra at 989-990. We therefore deem it appropriate to analyze the tension between Titles I and IV before deciding whether the election in this case was “already conducted” for purposes of § 483. It is also necessary to determine whether plaintiffs alleged genuine Title I or Title IV claims. We address first the relationship between Titles I and IV, and before turning to the legislative history, we look to the case law for guidance. Appellants rely heavily on Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964), in contending that the district court lacked jurisdiction to order a new election, and indeed that case is widely considered the starting point for examining the tension between Titles I and IV. Calhoon involved a pre-election attack on certain provisions of a union's bylaws and national constitution that prevented a union member from nominating anyone but himself for union office and that restricted nominating rights to union members of five or more years standing who had served a specified amount of sea time in recent years. Plaintiffs in Calhoon claimed that these rules deprived them of their equal right to nominate candidates under 29 U.S.C. § 411(aXl)- District court jurisdiction was therefore argued to be available under" }, { "docid": "9735465", "title": "", "text": "Act. The judgment of the district court will be reversed and the case remanded for further proceedings consistent with this opinion. . See Hodgson v. United Mine Workers, 77 L.R.R.M. 2497 (D.C. Cir. 1971) (Per Curiam affirmance on opinion of district court, 51 F.R.D. 270, (D.D.C.1970)) ; Wirtz v. National Maritime Union, 409 F.2d 1340 (2d Cir. 1969) ; Stein v. Wirtz, 366 F.2d 188 (10 Cir. 1966), cert. denied, 386 U.S. 996, 87 S.Ct. 1316, 18 L.Ed.2d 244 (1967) ; Wirtz v. Local Unions 410, 410A, 410B & 410C, etc., Operating Engineers, 366 F.2d 438 (2d Cir. 1966) ; Schultz v. United Steelworkers of America (District 15), 312 F.Supp. 1044 (W.D.Pa.1970) ; Wirtz v. Local Union No. 1377, I.B.E.W., 288 F.Supp. 914 (N. D.Ohio 1968) ; Wirtz v. Operating Engineers, 66 L.R.R.M. 2080 (C.D.Cal.1967) ; Wirtz v. Local 825, I.U.O.E., 60 L.R.R.M. 2092 (D.N.J.1965) ; Wirtz v. Teamsters Industrial and Allied Employees Union Local No. 73, etc., 257 F.Supp. 784 (D. Ohio 1966). . See also Hodgson v. Local Union 6799, United Steelworkers, 403 U.S. 333, 334, n. 1, 91 S.Ct. 1841, 29 L.Ed.2d 510 (1971). KALODNER, Circuit Judge (dissenting). I dissent for these reasons: In the instant case, McFadden filed his motion to intervene as a defendant in the Secretary’s action against the defendant Union “in order to contest the proposed certification of the results of the election held October 17, 1970.” It is settled that a union member cannot bring an action to set aside a union election and that the Secretary of Labor is vested with the “exclusive” right to maintain such an action, under § 403 of the Labor-Management Reporting and Disclosure Act of 1959, (LMRDA) 29 U.S.C.A. § 483. Trbovich v. United Mine Workers of America, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686, decided January 17, 1972; Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 13 L.Ed. 2d 190 (1964); McGuire v. Grand International Division of the Brotherhood of Locomotive Engineers, 426 F.2d 504, 508 (6 Cir. 1970); Mamula v. United Steelworkers of America, 304 F.2d 108, 109 (3 Cir." }, { "docid": "17710924", "title": "", "text": "filed a request for production of documents. The Secretary produced all of the requested documents save for two items: 1) handwritten notes prepared by a Department of Labor (“DOL”) attorney relating to a conversation between the attorney and Mr. Foley; and 2) a handwritten letter from Mr. Foley addressed to the aforementioned attorney dated January 9, 1984. The instant motion to compel is directed towards those two items. The Secretary contends that since Mr. Foley’s exclusive remedy is to have the DOL file suit and Mr. Foley has not chosen to intervene in that suit, the DOL’s attorneys become Mr. Foley’s attorneys, a fortiori, the attorney-client privilege applies. The Teamsters contend that there is no attorney-client relationship present; at the most, Mr. Foley is simply the Secretary’s complaining witness. Furthermore, the Teamsters contend that the Secretary’s duty lies in the public interest and not in the representation of Mr. Foley. The exclusivity of Mr. Foley’s remedy is not in question here. It is well settled that after an aggrieved member has exhausted internal union procedures, his sole recourse is to file a complaint with the Secretary. See Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 296, 13 L.Ed.2d 190 (1964); Fennelly v. Local 971, 400 F.Supp. 375, 376 (D.Mass.1975); 29 U.S.C. § 483. A union member has no right to a private action in an election dispute under the LMRDA § 403. Trbovich v. Mine Workers, 404 U.S. 528, 531, 92 S.Ct. 630, 632, 30 L.Ed.2d 686 (1972); Calhoon, 379 U.S. at 140, 85 S.Ct. at 296. The question of whether an attorney-client relationship exists rests on the actions of Mr. Foley. The Supreme Court has stated that in LMRDA violation cases, the Secretary bears two responsibilities: a guardian of the “vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member ...,” and “the [complaining] union member’s lawyer....” Trbovich, 404 U.S. at 539, 92 S.Ct. at 636 (quoting Wirtz v. Glass Bottle Blowers Assn., 389 U.S. 463, 475, 88 S.Ct. 643, 650, 19 L.Ed.2d 705 (1968)). The Court" }, { "docid": "9921791", "title": "", "text": "exists to believe a violation has occurred, is directed to file a civil action in the appropriate district court within sixty days of the filing of the union members’ complaint. The Supreme Court has determined that the method of redress outlined in section 402 is exclusive with regard to internal election rights of union members deriving from Title IV of the Act. As the Court said in Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 296, 13 L.Ed.2d 190 (1964) : Section 402 of Title IV [29 U.S.C. § 482] . . . sets up an exclusive method for protecting Title IV rights, by permitting an individual member to file a complaint with the Secretary of Labor challenging the validity of any election because of violations of Title IV. . . . It is apparent that Congress decided to utilize the special knowledge and discretion of the Secretary of Labor in order best to serve the public interest. In so doing Congress, with one exception not here relevant, decided not to permit individuals to block or delay union elections by filing federal-court suits for violations of Title IV. Since the questioned election was held subsequent to the denial of the request to enjoin it, the propriety of the denial has been rendered moot. Colpo v. Teamsters Local 107, 305 F.2d 362, 363 (3rd Cir.), cert. denied, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962); Davis v. Turner, 395 F.2d 671 (9th Cir.), cert. denied, 393 U.S. 987, 89 S.Ct. 467, 21 L.Ed.2d 449 (1968). The dismissal of the action is affirmed." }, { "docid": "1018795", "title": "", "text": "‘bogus’ locals composed entirely of pensioners, which were ‘run’ by the incumbents” to vote with them. (See fn. pp. 530 and 540 of 404 U.S., p. 637 of 92 S.Ct.) In Sargent v. United Transportation Union, 333 F.Supp. 956 (W.D.N.Y.1971) a claim of disproportionate representation (one man — one vote) was dismissed on jurisdictional grounds. Judge Curtin held (p. 957): “Relying upon the broad language of Title I with respect to voting rights, and pointing to the union members’s private remedy provided in Title 29, United States Code, Section 412, the plaintiff takes the position that recourse through the Secretary of Labor is unnecessary and improper. The defendant, on the other hand, has pointed to language in the provisions of Title IV which would indicate that relief must be sought through the Secretary of Labor. [T]he inquiry must go further than the overlapping and uncertain language of the Act. The policy of Congress is one of minimal intervention with union elections. Wirtz v. Local 153, Glass Bottle Blowers Assn., 389 U.S. 463, 470, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968). Within this policy, Congress * * * intended the district courts to move at the instance of private litigants in cases of fraud and willful breach of fiduciary duty and gross misconduct, but to go carefully and slowly, before intervening, except at the instance of the Secretary, where differentiation of the licit from the illicit entails expertise and where premature intervention would interfere with or discourage real prospects of internal relief or reform. Ratner, The Emergent Role of District Courts In National Labor Policy, 38 F.R.D. 81 (1965).” Any doubt that our Circuit 'would deem this pre-election case cognizable only under Title IV in a suit to be brought by the Secretary of Labor, would seem to be eliminated by the recent decision in Schonfeld v. Penza, 477 F.2d 899 (1973) hereinafter “Schonfeld III”. -There the Court held: “In Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964), the Court held that the Secretary could not be by-passed and that Title I rights were ‘[pjlainly ..." }, { "docid": "2167531", "title": "", "text": "Teledyne Indus., Inc. v. NLRB, 851 F.2d 839, 841 (6th Cir.1988); Speer v. City of Oregon, 847 F.2d 310, 311 (6th Cir.1988). Initially, the Secretary and Tucker have suggested that the Supreme Court’s decision in Wirtz v. Local 153, Glass Bottle Blowers Ass’n, 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968) militates against any conclusion that the issues joined in the instant appeal have become moot, despite the fact that the 1986 election for Director of UAW Region 5 had by court order been rescheduled and conducted under the Secretary’s supervision, that Tucker had been elected and had completed his term of office, and that he had been subsequently defeated by a duly elected successor. In Wirtz, the Supreme Court examined the specific issue of “whether ... the Secretary’s cause of action [commenced pursuant to Title IV of the LMRDA had become mooted] upon the fortuitous event of another unsupervised election before final judicial decision of the suit.” Wirtz, 389 U.S. at 469, 88 S.Ct. at 647. The Court concluded that the intervention of a scheduled, unsupervised election did not serve to moot the Secretary’s action challenging the propriety of the previously conducted election. We therefore hold that when the Secretary of Labor proves the existence of a 401 violation that may have affected the outcome of a challenged election, the fact that the union has already conducted another unsupervised election does not deprive the Secretary of his right to a court order declaring the challenged election void and directing that a new election be conducted under his supervision. Wirtz, 389 U.S. at 475-76, 88 S.Ct. at 650 (emphasis added) (footnote omitted); Wirtz v. Local Union No. 125, Laborers’ Int’l Union of N. Am., AFL-CIO, 389 U.S. 477, 479, 88 S.Ct. 639, 640, 19 L.Ed.2d 716 (1968). The result enunciated in Wirtz, however, is factually distinguishable from the case at bar and thus is not dispositive of the issue of mootness presented in the instant case. In concluding that the Secretary’s action was not moot, the Court in Wirtz specifically and repeatedly indicated that its decision had been" }, { "docid": "9735464", "title": "", "text": "* * * * * * (D) without observance of procedure required by law.” 5 U.S.C. § 706. Section 402(b) sets forth a legal standard for the conduct of a supervised election. The court must “direct the conduct of a new election under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization.” 29 U.S.C. § 482(c). At a minimum the court must itself determine, before it enters a decree, whether the election was held in conformance with the appropriate legal standard. Here the district court expressly abdicated that responsibility and relied entirely upon the Secretary’s “good faith.” We hold that the district court in this case should have permitted McFadden to intervene and should have held a hearing, before entering a decree declaring elected the persons certified by the Secretary, to determine whether the Secretary’s action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law — in this case the legal requirements of § 402 of the Act. The judgment of the district court will be reversed and the case remanded for further proceedings consistent with this opinion. . See Hodgson v. United Mine Workers, 77 L.R.R.M. 2497 (D.C. Cir. 1971) (Per Curiam affirmance on opinion of district court, 51 F.R.D. 270, (D.D.C.1970)) ; Wirtz v. National Maritime Union, 409 F.2d 1340 (2d Cir. 1969) ; Stein v. Wirtz, 366 F.2d 188 (10 Cir. 1966), cert. denied, 386 U.S. 996, 87 S.Ct. 1316, 18 L.Ed.2d 244 (1967) ; Wirtz v. Local Unions 410, 410A, 410B & 410C, etc., Operating Engineers, 366 F.2d 438 (2d Cir. 1966) ; Schultz v. United Steelworkers of America (District 15), 312 F.Supp. 1044 (W.D.Pa.1970) ; Wirtz v. Local Union No. 1377, I.B.E.W., 288 F.Supp. 914 (N. D.Ohio 1968) ; Wirtz v. Operating Engineers, 66 L.R.R.M. 2080 (C.D.Cal.1967) ; Wirtz v. Local 825, I.U.O.E., 60 L.R.R.M. 2092 (D.N.J.1965) ; Wirtz v. Teamsters Industrial and Allied Employees Union Local No. 73, etc., 257 F.Supp. 784 (D. Ohio 1966). . See also Hodgson v. Local Union 6799, United Steelworkers, 403" }, { "docid": "6338546", "title": "", "text": "strictly limits official interference in the internal affairs of unions. See, Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964); Gurton v. Arons, 339 F.2d 371 (2d Cir. 1964). The Act prescribes only certain basic minima and leaves the area not covered by these minimum prescriptions to the decisions of the unions themselves. “Congress intentionally created a narrow remedy under Title IV of the LMRDA so that interference with union elections and management would be kept at a minimum.” Wirtz v. Locals 410, 410A, 410B & 410C, Int’l Union of Operating Engineers, 366 F.2d 438, 442 (2d Cir. 1966). The Supreme Court, in discussing Title IV, referred to “the general congressional policy to allow unions great latitude in resolving their own internal controversies.” Calhoon v. Harvey, supra, 379 U.S. at 140, 85 S.Ct. at 296. The legislative policy of leaving to the unions the maximum degree of self-government is emphasized at many points in the legislative history. In Senate Report No. 1684, 85th Cong., 2d Sess. 12-15 (1958), for example, the following appears: “The committee gave careful study to various proposals providing for the conduct of union elections by the National Labor Relations Board upon the request of a small percentage of the members. The committee rejected this approach for two reasons. One fundamental objection is that these proposals turn over to an arm of the State the responsibility for carrying on the internal governmental processes of voluntary associations without any showing that the union officers and members are incompetent or corrupt. Such a measure does not promote freedom or democracy. It reduces self-government. It denies the private responsibility and self-determination which lie at the heart of a voluntary association.” Reprinted in United States Department of Labor, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 702 (1964). [Cited hereafter as “Legislative History.”] In Senate Report No. 187, the Committee referred to the following “principles” as governing the proposed legislation : “1. The committee recognized the desirability of minimum interference by Government in the internal affairs of any private organization. Trade unions have" }, { "docid": "12705246", "title": "", "text": "and Disclosure Act of 1959, (“LMRDA”), 29 U.S.C.A. §§ 481-83. The complaint alleged that Local 19 had violated the LMRDA “by failing to follow its Constitution and By-Laws pertaining to removal of an elected officer guilty of serious misconduct.” Complaint, § VIII. The Secretary concedes that the constitution and bylaws governing Local 19 provide an adequate removal procedure but argues that they were not followed in this instance. On November 17, 1981, the district court granted the Secretary’s motion for summary judgment and on November 24, 1981, ordered Local 19 to conduct a removal proceeding against Marolda under the supervision of the Secretary. The dispositive question on this appeal is whether the LMRDA authorizes the Secretary to bring a civil action against a union for failure to follow its concededly adequate removal procedures. II A Generally speaking, the LMRDA was enacted to “correct the abuses which have crept into labor and management .... ” S.Rep. 187, 86th Cong., 1st Sess. 2, reprinted in 1959 U.S.Code Cong. & Ad.News 2318, 2318, and 1 NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, 397, 398 (1959) (hereinafter “Leg.Hist.”). See LMRDA § 2, 29 U.S.C. § 401; Wirtz v. Local 153, Glass Bottle Blowers Association, 389 U.S. 463, 469-70, 88 S.Ct. 643, 647, 19 L.Ed.2d 705 (1968); Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819 (1960). The primary goal of Title IV of the LMRDA “is to insure ‘free and democratic’ [union] elections.” Wirtz v. Bottle Blowers, 389 U.S. at 470, 88 S.Ct. at 648. Title IV also regulates procedures for the removal of union officers. This is our first occasion to examine the reach of these provisions. Union procedures for the removal of officers are governed specifically by § 401(h) of the LMRDA, 29 U.S.C. § 481(h). It states: If the Secretary, upon application of any member of a local labor organization, finds after hearing in accordance with the Administrative Procedure Act that the constitution and bylaws of such labor organization do not provide an adequate procedure for the removal of" }, { "docid": "3338822", "title": "", "text": "et seq., had been violated and that the District Court had jurisdiction to entertain their individual suit for redress under 29 U.S.C. § 412. Summary judgment in favor of appellees was granted by the District Court on the ground, among others, that it was without jurisdiction to entertain the suit. We agree. The rights asserted by appellants are those protected not by Title I, but by Title IV of the Act, 29 U.S.C. § 481 et seq., as to which the exclusive method of enforcement is through complaint filed with the Secretary of Labor who, if he finds violation of the statutory provisions, may file suit in the appropriate district court to secure a new election to be held under his supervision. 29 U.S.C. § 482(a) and (b); Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). Further, even were we to find appellants’ contentions to be a valid subject for an individual union member’s suit under Title I, their suit would have been aborted when the election they challenge was conducted. Colpo v. Highway Truck Drivers & Helpers Local 107, 305 F.2d 362 (3d Cir.), cert. denied, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962). No individual suit to set aside a union election may be maintained, for § 403 of the Act, 29 U.S.C. § 483, provides that the Secretary of Labor’s action is the exclusive remedy “for challenging an election already conducted.” See Note, 78 Harv.L.Rev. 1617 (1965); Note, 74 Yale L.J. 1282 (1965). Judgment affirmed. . Because of this statutory mandate ousting the District Court of jurisdiction, we need not consider the question raised by appellees as to the effect of the holding of the convention to which the election of delegates related. In a suit by the Secretary of Labor, of statutory necessity brought after a union election has been conducted, this question will be relevant. Cf. Wirtz v. Local 153, Glass Bottle Blowers Ass’n, 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968). But see Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 40 L.Ed. 293" }, { "docid": "13331473", "title": "", "text": "filing of a complaint. We realize that, if permitted, a challenge to the Secretary’s decision not to bring suit may in some cases result in a court ordering the Secretary to file suit long after this time limit, thereby conflicting with Congress’ concern to assure that the cloud on the incumbents’ titles to office will be resolved as quickly as possible, Wirtz v. Bottle Blowers Ass’n, 389 U.S. 463, 468-469, n. 7, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968). That concern, however, may be subordinated to the goal of providing an effective remedy for election irregularities. Thus, the Secretary has been allowed to file suit beyond the 60-day period not only in those cases where the union has waived the requirement to permit additional investigations or settlement negotiations, Hodgson v. Machinists Lodge 851, 454 F.2d 545 (7th Cir. 1971); Hodgson v. International Pressmen, 440 F.2d 1113 (6th Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56 (1971), but also where the union has by its conduct impeded the Secretary’s investigations, Wirtz v. Carpenters Local 1622, 285 F.Supp. 455 (N.D.Cal.1968); Wirtz v. Independent Workers Union, 65 L.R.R.M. 2104, 2108 (M.D.Fla.1967); Wirtz v. Great Lakes District Local 47, 240 F.Supp. 859 (N.D.Ohio 1965). Although here it is the alleged wrongdoing of the Secretary, rather than the union, which has caused the delay, we believe a court would be acting consistently with the fundamental purpose of the LMRDA in entertaining a suit beyond the time limit in those rare cases where the Secretary’s original decision not to file suit has been successfully challenged. —B— In concluding that the procedures set forth in §§ 402 and 403 do not evince a congressional intent to preclude judicial review of the Secretary’s decision whether to bring suit, we do not mean to deny that the Secretary has considerable discretion in the exercise of his enforcement powers. Speaking of the Secretary’s duty to screen complaints before filing suit, the Court stated in Calhoon v. Harvey, supra, 379 U. S. at 140, 85 S.Ct. at 296: “It is apparent that Congress decided to utilize the" }, { "docid": "17710925", "title": "", "text": "his sole recourse is to file a complaint with the Secretary. See Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 296, 13 L.Ed.2d 190 (1964); Fennelly v. Local 971, 400 F.Supp. 375, 376 (D.Mass.1975); 29 U.S.C. § 483. A union member has no right to a private action in an election dispute under the LMRDA § 403. Trbovich v. Mine Workers, 404 U.S. 528, 531, 92 S.Ct. 630, 632, 30 L.Ed.2d 686 (1972); Calhoon, 379 U.S. at 140, 85 S.Ct. at 296. The question of whether an attorney-client relationship exists rests on the actions of Mr. Foley. The Supreme Court has stated that in LMRDA violation cases, the Secretary bears two responsibilities: a guardian of the “vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member ...,” and “the [complaining] union member’s lawyer....” Trbovich, 404 U.S. at 539, 92 S.Ct. at 636 (quoting Wirtz v. Glass Bottle Blowers Assn., 389 U.S. 463, 475, 88 S.Ct. 643, 650, 19 L.Ed.2d 705 (1968)). The Court acknowledged that these duties are “distinct interests, which are related, but not identical.” Trbovich, 404 U.S. at 538, 92 S.Ct. at 636. If Mr. Foley ascertains that his interests are the same as the public interests alluded to by the Supreme Court, then the Secretary’s legal staff becomes Mr. Foley’s de facto lawyers. This conclusion is buttressed by the rule announced in Trbovich v. Mine Workers, supra. If the union member who initiated an enforcement proceeding by the filing of a complaint with the Secretary has “a valid complaint about the performance of ‘his lawyer’,” he may intervene in the enforcement suit. Trbovich, 404 U.S. at 539, 92 S.Ct. at 636. Mr. Foley seems content and satisfied with the performance of the Secretary’s legal staff, and has accepted said staff as his own lawyers. “A professional relationship [of attorney-client] is not dependent upon payment of fees nor ... upon the execution of a formal contract.” Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1317 (7th Cir.) cert. denied 439 U.S. 955, 99 S.Ct. 353," }, { "docid": "16097237", "title": "", "text": "Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819, 852 (1960). . The Conference Report simply states that the Senate bill’s administrative enforcement scheme prevailed over the House bill’s private suit provision, without tendering any explanation for the outcome. H.R. Rep. No. 1147, 86th Cong., 1st Sess. 35 (1959), U.S.Code Cong. & Admin.News, 1959, p. 2318. . See, Beaird, Union Officer Election Provisions of the Labor-Management Reporting and Disclosure Act of 1959, 51 Va.L.Rev. 1306, 1339 (1965). Contra, Note, The Election Labyrinth: An Inquiry into Title IV of the LMRDA, 43 N.Y.U.L.Rev. 336, 358 (1968). The Senate Committee report offers the only guidance, and little at that. “After the election the Secretary would certify the names of the persons elected and enter an appropriate decree declaring them to be the officers of the labor organization.” S.Rep. No. 187, 86th Cong., 1st Sess. 21 (1959) U.S.Code Cong. & Admin.News 1959, p. 2338 (emphasis supplied.) . See also Wirtz v. Local 153, Glass Bottle Blowers, 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968) (supervening unsupervised union election does not render moot section 402 action). . See Calhoon v. Harvey, 379 U.S. 134, 140-41, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). . See Hodgson v. Machinists Lodge 851, 454 F.2d 545 (7th Cir. 1971); Hodgson v. International Pressmen, 440 F.2d 1113 (6th Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56 (1971). The courts have also implied a “waiver” where union conduct impedes the Secretary’s investigation. See, e. g., Wirtz v. Carpenters Local 1622, 285 F.Supp. 455 (N.D.Cal. 1968). . See, e. g., Brennan v. Local 551, United Auto Workers, 486 F.2d 6 (7th Cir. 1973) (Secretary may delay date for supervised election); Hodgson v. Local 1299, United Steel Workers, 453 F.2d 565 (6th Cir. 1971) (Secretary may supervise entire rerun election, if necessary, even though original violation pertained only to changing of ballots between initial vote and recount); Hodgson v. Chain Service Rest. L. & S. F. Emp. U. Local 11, 355 F.Supp. 180 (S.D.N.Y.1973) (Secretary has authority to refuse to certify a candidate elected in" }, { "docid": "14937139", "title": "", "text": "on behalf of the defeated candidates under Title IV of the LMRDA with the Secretary of Labor. The Secretary’s jurisdiction with respect to setting aside the election is exclusive, Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964), and the Court has no jurisdiction in this action to inquire into and does not undertake to inquire into the validity of the election. The Amended Complaint alleges that two former Vice Presidents of the Union, John T. Haletsky and Charles J. Kelleher, were discharged as Organizing Directors in retaliation for their unsuccessful political opposition to the administration slate after they had run for Union office in the 1968 contested election. It is further alleged that RCIA and certain key officers of the Union have, since the contested election, improperly used their authority by attempting to suppress an organization known as the Committee for a Democratic Election (CFDE), which is responsible for the prosecution of this lawsuit and which is seeking, in the other proceedings mentioned, to set aside the results of the contested election. Finally, it is alleged that the long-time President of RCIA, James A. Suffridge, now President Emeritus, was ineligible to serve in those offices and that his acceptance of such offices and their financial rewards constitutes a breach of trust within the meaning of the LMRDA. These three major issues here presented must be adjudicated in the light of the provisions and underlying purposes of the LMRDA. Nothing is served by discussing these purposes and provisions of the Act in detail. In the implementation of the Act, courts have frequently emphasized the paramount considerations of national policy which resulted in enactment after long and careful hearings before the Congress. Only a few of these decisions need be cited here: Wirtz v. Hotel, Motel & Club Employees, 391 U.S. 492, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968); Wirtz v. Local 153, Glass Bottle Blowers Assn., 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968) ; Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964); Bakery & Confectionery Workers Internat’l Union" }, { "docid": "6338545", "title": "", "text": "The issue which we must resolve is whether the eligibility restrictions of the union by-law are “reasonable qualifications.” In determining this question we do not regard the “clearly erroneous” rule as controlling, see Donaldson Publishing Co. v. Bregman, Vocco & Conn, Inc., 375 F.2d 639, 641 (2d Cir. 1967) ; Baranow v. Gibralter Factors Corp., 366 F.2d 584, 587-589 (2d Cir. 1966); Mamiye Bros. v. Barber S.S. Lines, Inc., 360 F.2d 774, 776-778 (2d Cir.), cert, denied, 385 U.S. 835, 87 S.Ct. 80, 17 L.Ed.2d 70 (1966), although even if it were, we are left with “the definite and firm conviction that a mistake has been committed.” See United States v. United States Gypsum Co., 333 U.S. 364, 394-395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). In deciding the issue of reasonableness we must keep in mind the fact that the Act did not purport to take away from labor unions the governance of their own internal affairs and hand that governance over either to the courts or to the Secretary of Labor. The Act strictly limits official interference in the internal affairs of unions. See, Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964); Gurton v. Arons, 339 F.2d 371 (2d Cir. 1964). The Act prescribes only certain basic minima and leaves the area not covered by these minimum prescriptions to the decisions of the unions themselves. “Congress intentionally created a narrow remedy under Title IV of the LMRDA so that interference with union elections and management would be kept at a minimum.” Wirtz v. Locals 410, 410A, 410B & 410C, Int’l Union of Operating Engineers, 366 F.2d 438, 442 (2d Cir. 1966). The Supreme Court, in discussing Title IV, referred to “the general congressional policy to allow unions great latitude in resolving their own internal controversies.” Calhoon v. Harvey, supra, 379 U.S. at 140, 85 S.Ct. at 296. The legislative policy of leaving to the unions the maximum degree of self-government is emphasized at many points in the legislative history. In Senate Report No. 1684, 85th Cong., 2d Sess. 12-15 (1958), for example, the" }, { "docid": "14937140", "title": "", "text": "contested election. Finally, it is alleged that the long-time President of RCIA, James A. Suffridge, now President Emeritus, was ineligible to serve in those offices and that his acceptance of such offices and their financial rewards constitutes a breach of trust within the meaning of the LMRDA. These three major issues here presented must be adjudicated in the light of the provisions and underlying purposes of the LMRDA. Nothing is served by discussing these purposes and provisions of the Act in detail. In the implementation of the Act, courts have frequently emphasized the paramount considerations of national policy which resulted in enactment after long and careful hearings before the Congress. Only a few of these decisions need be cited here: Wirtz v. Hotel, Motel & Club Employees, 391 U.S. 492, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968); Wirtz v. Local 153, Glass Bottle Blowers Assn., 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968) ; Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964); Bakery & Confectionery Workers Internat’l Union of America v. Ratner, 118 U.S.App.D.C. 269, 335 F.2d 691 (1964). As these and other decisions reiterate, the Act guaran tees union members a full right to participate in the political affairs of their union without interference or retribution and requires elected union officials to act without abusing their positions of trust. Thus, as was said in Wirtz v. Hotel, Motel & Club Employees, supra, A pervasive theme in the congressional debates about the election provisions was that revelations of corruption, dictatorial practices and racketeering in some unions investigated by Congress indicated a need to protect the rights of rank-and-file members to participate fully in the operation of their union through processes of democratic self-government, and, through the election process, to keep the union leadership responsive to the membership. This theme is made explicit in the reports of the Labor Committees of both Houses of Congress. It is reflected in the discrete provisions of Title IV and also of Title I, the “Bill of Rights” for union members. * * * 391 U.S. at 497-498," }, { "docid": "16097218", "title": "", "text": "411-15 (“bill of rights” guarantees and prohibition on discipline for exercise of rights under the LMRDA); Title II, id. § 431 (right to examine union books, records and accounts); Title III, id. §§ 461-66 (union trusteeship regulation); Title V, id. § 501 (fiduciary obligations of union officials). . Section 401(c), 29 U.S.C. § 481(c), is the sole exception to the administrative scheme for Title IV, permitting “suits prior to election . by any bona fide candidate for union office to enforce the rights, guaranteed by that section, to equal treatment in the distribution of campaign literature and access to membership lists.” Calhoon v. Harvey, 379 U.S. 134, 140 n.13, 85 S.Ct. 292, 296, 13 L.Ed.2d 190 (1964). The provision also guarantees “adequate safeguards to insure a fair election,” and this was one of the bases for the pre-election suit in Yablonski v. United Mine Workers, 305 F.Supp. 868, order clarified, id. at 876 (D.D.C. 1969), discussed in 151 U.S.App.D.C. 253, 466 F.2d 424 (1972), cert. denied, 412 U.S. 918, 93 S.ct. 2729, 37 L.Ed.2d 144 (1973). See note 35 infra. . See generally Note, Pre-Election Remedies Under the Landrum-Griffin Act: The “Twilight Zone\" Between Election Rights Under Title IV and the Guarantees of Titles I and V, 74 Colum. L.Rev. 1105 (1974); Note, Union Elections and the LMRDA, 81 Yale L.J. 407, 545-65 (1972). . Although the language of section 402(b) seems mandatory, the Secretary has discretion to determine both whether there has been a probable violation and whether the outcome of the election was probably affected by the violation. Wirtz v. Local 153, Glass Bottle Blowers, 389 U.S. 463, 472, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968); Dunlop v. Bachowski, 421 U.S. 560, 570, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), discussed at pp. ---, --- of 177 U.S.App.D.C., pp. 376, 378 of 543 F.2d infra. . See note 55 and accompanying text infra. . During months immediately before and after institution of the suit, defendant attempted to remove complainant George, who was a leader of the dissident forces in the local union, from union membership. On May 10," }, { "docid": "4039491", "title": "", "text": "by existing parties.” It is not disputed that the applicant has a substantial property interest in the outcome of the case. If plaintiff is successful and the election is nullified, Hart will lose his salary and certain fringe benefits to which, as District Director, he is currently entitled. The cases cited by plaintiff for the proposition that a complaining union member may not intervene as a plaintiff are distinguishable from the present case. The statutory scheme envisages the Secretary as the only person capable of prosecuting a Title IV action so that interference with union elections and management might be kept at a minimum. Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). This scheme would not necessarily be upset by allowing an interested incumbent to intervene as a defendant. Cf. Wirtz v. Teamsters Industrial & Allied Emp. U. Local No. 73, 257 F.Supp 784, 790 (N.D.Ohio 1966). The' defendant in this action is the United Steelworkers of America and not District 19 of the United Steelworkers of America. Although Hart has not pointed to any particular area in which his interests would not be protected by the defendant labor organization, it is obvious that the interests of the applicant, whose election is challenged, may not be identical with the interests of the defendant organization. The applicant is so situated that disposition of the action may as a practical matter impair or impede his ability to protect his property interests, and it is quite possible that the defendant organization as an entity may not adequately represent the property interests of the applicant as an individual. An appropriate order will be entered. . Wirtz v. National Maritime Union of America, 409 F.2d 1340 (2d Cir. 1969) ; Stein v. Wirtz, 366 F.2d 188 (10th Cir. 1966) ; Wirtz v. Local Unions 410, 410A, 410B & 4100, Int. U. of Op. Eng., 366 F.2d 438 (2d Cir. 1966) ; Wirtz v. Local Union No. 1377, Int. Bro. of Elec. Workers, 288 F.Supp. 914 (N.D.Ohio 1968). . The averments contained in ¶ 3 of the motion are without" }, { "docid": "427964", "title": "", "text": "than the required four-month period. The only avenue she did not pursue, an appeal to the General Convention in the summer of 1978, was far beyond the statutory period. B. Failure to File a Complaint with the Secretary of Labor A second ground on which the district court granted defendant’s motion for sum mary judgment was Ornellas’ failure to file a complaint with the Secretary of Labor. Ornellas, however, was not required to file a complaint with the Secretary. Under 29 U.S.C. § 481, union members are guaranteed free and democratic elections. See Wirtz v. Local 153, Glass Bottle Blowers Ass’n, 389 U.S. 463, 470-71, 88 S.Ct. 643, 648, 19 L.Ed.2d 705 (1968). Because of the Congressional policy of minimizing judicial interference in union elections, there is no private cause of action to redress alleged violations of § 481. Instead, under 29 U.S.C. § 482, a union member alleging a violation of § 481, after exhausting her intraunion remedies, can file a complaint with the Secretary of Labor, and only the Secretary of Labor can initiate a lawsuit challenging the validity of a union election. Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). In Calhoon, the Supreme Court held that the jurisdiction of the district court could not be invoked by union members alleging that their rights under Title I of the LMRDA, 29 U.S.C. § 411, had been violated, when those allegations in substance charge a breach of Title IV, 29 U.S.C. § 481. Calhoon, 379 U.S. at 138-39, 85 S.Ct. at 295. Ornellas, however, has not in effect alleged a violation of Title IV. Although Ornellas’ attempt to run for union office triggered the events in question, it is plain that the substance of her action is not a challenge to union elections which only the Secretary of Labor may challenge. See Calhoon, 379 U.S. at 140-41, 85 S.Ct. at 296. Rather, Ornellas’ complaint alleges in substance violations of rights guaranteed in Title I: her loss of both union membership and employment in retaliation for the exercise of her rights, and the failure" } ]

[ { "docid": "13501238", "title": "", "text": "Cases where this is done form a well recognized exception to the rule of New York County Nat. Bank v. Massey, supra. See Matters v. Manufacturers’ Trust Company (C. C. A.) 54 F.(2d) 1010, 1013. In such a case Judge Learned Hand points out, “It was enough that the depositor alone intended not to use his right of withdrawal until the bank’s right ended it. The deposit becomes a transfer because the depositor means it to be such; that is, he means not to exercise his right of withdrawal as to all of it, but to leave some part until that right is gone. It is not necessary that the residue shall be determinable in advance; no moré need appear than that some part shall be left. When this is so the deposit is not in ordinary course; the part unused becomes a preferential payment when seized by set-off.” The ease here is of that nature. Whenever the bankrupt’s individual account got above $500 he would draw $500 out and put it in the corporation’s account where he probably thought his general creditors could not, reach it, or at least might have difficulty in doing so, but where, by reason of his special arrangement and understanding with the bank that he and the corporation were one and the same thing, the bank could appropriate it to the payment of its claim against him. Naturally he wished to favor the bank and keep in its good graces, since he was endeavoring to go on with his business under the form of a corporation and required credit and banking connections for that purpose. The bank seems to have had no hesitation in appropriating the corporation’s funds to pay the individual note, and apparently the corporation acquiesced and everyone understood that it could he done in that way. We find there was ample evidence on which to submit the ease to the jury and later to sustain their verdict, and hold that, under the law applicable thereto, the judgment must be affirmed." } ]

[ { "docid": "5394697", "title": "", "text": "450, 451, 21 S. Ct. 906, 45 L.Ed. 1171; In re Eggert, 7 Cir., 102 F. 735, 736, 738. Whore, as here, a general unsecured creditor receives payment in full, the test can be rephrased to query simply whether at the time of payment he had reasonable cause to believe the debtor insolvent. 97 U.S. 80, 24 L.Ed. 971. Ib., 97 U.S. at pages 81, 82, 24 L.Ed. 971. Although the language of § 60, sub. b under consideration in the Grant v. First National Bank case was amended by the Act of June 25, 1910, 36 Stat. 842, so that the criterion was phrased “reasonable cause to believe that the * * * transfer would effect a preference”, as applied to this case, both parties concede that means reasonable cause to believe the Company insolvent. It is of interest to note, though not material to the instant case, that under the new Bankruptcy Act of 1938, this criterion has been changed to read “reasonable cause to believe that the debtor is insolvent”. 11 U.S.C.A. § 96, sub. b. Stucky v. Masonic Savings Bank, 108 U.S. 74, 75, 2 S.Ct. 219, 27 L.Ed. 640; Sharpe v. Allender, 3 Cir., 170 F. 589; Bassett v. Evans, 8 Cir., 253 F. 532, 535; Essex National Bank v. Hurley, 1 Cir., 16 F.2d 427; Everett v. Warfield Mining Co., 4 Cir., 37 F.2d 328, 330; Brown Shoe Co. v. Cams, 8 Cir., 65 F.2d 294; Brookheim v. Greenbaum, D.C., S.D.N.Y., 225 F. 635, 637; Beall v. Bank of Bowden, D.C., N.D.Ga., 219 F. 316. The foregoing are merely representative cases and by no means represent an exhaustive citation of all decisions applying the principle laid down in the Grant case. Bassett v. Evans, 8 Cir., 253 F. 532, 535. Mechanics & Metals National Bank of New York v. Ernst, 231 U.S. 60, 34 S. Ct. 22, 58 L.Ed. 121; Essex National Bank v. Hurley, 1 Cir., 16 F.2d 427; In re McDonald & Sons, D.C., 178 F. 487. The treasurer informed the Bank’s President that the payment expected from the Frederick, Md., job" }, { "docid": "673472", "title": "", "text": "necessary to examine the Bank’s contentions that the two loan repayments should not be characterized as preferential transfers. III. The Affirmative Defenses of the New York Bank A. Set-Off: Both Loans The Bank asserts that, wholly apart from its status as a secured creditor, its receipt of funds on November 19 constituted a legitimate set-off of the debt owed it by AIBC and was not a transfer subject to recovery by the Trustee as a preference. While the Bank does not make the point, its set-off argument is also applicable to the repayment of the first loan on November 2 and shall be considered in regard to both loans here. Section 68 of the Bankruptcy Act, 11 U.S.C. § 108, provides that “[i]n all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor,” the debts shall be set off against one another. Such a set-off may not be recovered as a preferential transfer under § 60 by the bankruptcy trustee. See New York County National Bank v. Massey, 192 U.S. 138, 147, 24 S.Ct. 199, 48 L.Ed. 380 (1904). Section 68 is applicable where the bankrupt makes a deposit in his bank account in good faith and in the due course of business, and where the deposit is subject to withdrawal at the will of the depositor. See Joseph F. Hughes & Co. v. Machen, 164 F.2d 983, 987 (4th Cir. 1947), cert. denied, 333 U.S. 881, 68 S.Ct. 912, 92 L.Ed. 1156 (1948). If the deposit is accepted by the bank with an intent to apply it “on a pre-existing claim against the depositor rather than to hold [it] subject to the depositor’s checks in ordinary course,” however, the deposit is viewed legally as a transfer in payment of the debt. As such, it may be recovered by the trustee where the elements of a voidable preference are otherwise satisfied. Goldstein v. Franklin Square National Bank, 107 F.2d 393, 394 (2d Cir. 1939); Mayo v. Pioneer Bank & Trust Co., 270 F.2d 823, 836 (5th Cir. 1959), cert. denied, 362 U.S. 962," }, { "docid": "14528141", "title": "", "text": "of debtor and creditor. The essential elements of a preference, as defined in the Act, were obviously lacking. Hurley v. Atchison, Topeka & Santa Fe R., 213 U. S. 126, 29 S.Ct. 466, 53 L.Ed. 729; Keystone Warehouse Co. v. Bissell, 2 Cir., 203 ,F. 652; Ernst v. Mechanics’ & Metals National Bank, 2 Cir., 201 F. 664; In re Kayser, 3 Cir., 177 F. 383; In re Shipley Stave & Lumber Co., D.C., 29 F.Supp. 746. The transfer of property in the usual course of business for a present adequate consideration, and not in payment of or security for an antecedent debt, is not a preference. In re Pusey-Maynes-Breish Co., D.C., 37 F.Supp. 316, affirmed 3 Cir., 122 F.2d 606; Doggett v. Chelsea Trust 'Co., 1 Cir., 73 F.2d 614, 617. Such a transfer does not effect a depletion of the bank.rupt’s property to the injury of other creditors, an essential element of a preference, Continental Trust Co. v. Chicago Title .Co., 229 U.S. 435, 443, 33 S.Ct. 829, 57 L.Ed. 1268; Newport Bank v. Herkimer Bank, 225 U.S. 178, 184, 32 S.Ct. 633, 56 L.Ed. 1042; Bielaski v. National City Bank of New York, 2 Cir., 68 F.2d 723, .724; First National Bank of Danville v. Phalen, 7 Cir., 62 F.2d 21, 22, 88 A.L.R. 75; Citizens’ National Bank of Gastonia v. Lineberger, 4 Cir., 45 F.2d 522, 526, but enhances the bankrupt’s assets to the extent of the consideration advanced. The contention of the trustee in bankruptcy that the assignments of the accounts receivable were voidable preferences within the meaning of the act seems to be predicated upon the assumption that the transfers were made as “collateral security” for antecedent debts. There is nothing in the evidence to support this assumption, but we may adopt it for the purpose of discussion. The adoption of this assumption, however, will not avail the trustee in bankruptcy. It is well recognized that a preference may be avoided under Section 60, sub. b of the Bankruptcy Act, 11 U.S.C.A. 96, sub. b, only “if the creditor receiving it * * *" }, { "docid": "21028326", "title": "", "text": "186 U.S. 181, 190, 22 S.Ct. 857, 46 L.Ed. 1113. See Vanston Committee v. Green, 329 U.S. 156, 172, 67 S.Ct. 237, 91 L.Ed. 162. But neither does it do violence to any constitutional or other requirement to construe a bankruptcy statute as taking as the standard a nation-wide federal definition. Vanston Committee v. Green, 329 U.S. 156, 162-163, 67 S.Ct. 237, 91 L.Ed. 162; City of Lincoln v. Ricketts, 297 U.S. 373, 56 S.Ct. 507, 80 L.Ed. 724; American Surety Co. v. Marotta, 287 U.S. 513, 53 S.Ct. 260, 77 L.Ed. 466. Between these possible alternatives there are compelling reasons for choosing a federal definition of the term “converted” as used in § 60, sub. b. What Congress aimed at was a rule which would permit the trustee to treat the preference as a forced sale only if the preferee could not retu'rn the identical property in substantially as good condition as when the bankrupt had it. This result can readily be achieved by a federal rule announced by a federal court. It cannot be achieved by incorporating by reference local state rules. For under the law of most states the doctrine of conversion would work a capricious result in bankruptcy. Sometimes it would go too far in penalizing the preferee. Thus, if the trustee made demand upon the alleged preferee for the property and the preferee in good faith refused to deliver until there had been a judicial determination of the facts, the preferee’s refusal would probably be a “conversion”. Hotchkiss v. National City Bank of New York, D.C.S.D.N.Y., 200 F. 287, 294-295 [where L. Hand, J. stated there would be a conversion if there were a demand], affirmed Ernst v. Mechanics’ & Metals National Bank of New York, 2 Cir., 201 F. 664, affirmed. National City Bank v. Hotchkiss, 231 U.S. 50, 59, 34 S.Ct. 20, 58 L.Ed. 115 [2nd paragraph line 6 where Holmes, J. assumes a “conversion”]. See Restatement, Torts, § 237. Cf. Land v. Dollar, 330 U.S. 731, 736, 67 S.Ct. 1009, Note 5, 91 L.Ed. 1209. At other times the state doctrine of" }, { "docid": "5394698", "title": "", "text": "§ 96, sub. b. Stucky v. Masonic Savings Bank, 108 U.S. 74, 75, 2 S.Ct. 219, 27 L.Ed. 640; Sharpe v. Allender, 3 Cir., 170 F. 589; Bassett v. Evans, 8 Cir., 253 F. 532, 535; Essex National Bank v. Hurley, 1 Cir., 16 F.2d 427; Everett v. Warfield Mining Co., 4 Cir., 37 F.2d 328, 330; Brown Shoe Co. v. Cams, 8 Cir., 65 F.2d 294; Brookheim v. Greenbaum, D.C., S.D.N.Y., 225 F. 635, 637; Beall v. Bank of Bowden, D.C., N.D.Ga., 219 F. 316. The foregoing are merely representative cases and by no means represent an exhaustive citation of all decisions applying the principle laid down in the Grant case. Bassett v. Evans, 8 Cir., 253 F. 532, 535. Mechanics & Metals National Bank of New York v. Ernst, 231 U.S. 60, 34 S. Ct. 22, 58 L.Ed. 121; Essex National Bank v. Hurley, 1 Cir., 16 F.2d 427; In re McDonald & Sons, D.C., 178 F. 487. The treasurer informed the Bank’s President that the payment expected from the Frederick, Md., job would be cut from $30,000 to $20,000. This was merely a periodic estimate payment and the reduction did not indicate the Com- • pany’s final receipts would be diminished. The treasurer also indicated the Arlington, Va., final payment was being held up by a controversy over extras, which constituted but a fraction of the payment due. The appellant contends significance must be attached to certain testimony that the Company abandoned its projects at about the time the deposits were made. The testimony on this point is conflicting. There is no evidence in the record, however, to support a finding that the Bank knew of this alleged abandonment, if it had then occurred. An accountant witness testified in the District Court that an independent audit made at the behest of one of the company’s sureties in the latter part of January indicated the Company’s assets as of January 15, 1937, exceeded its liabilities by some $31,000. Had the Bank checked the Company’s books at the time of the deposits in question, therefore, a solvent condition would" }, { "docid": "1389895", "title": "", "text": "60, 34 S. Ct. 22, 58 L. Ed. 121. On this distinction a set-off of the whole of a deposit account which had been accumulated in the usual course of business has been upheld, but a set-off of subsequent deposits which were received by the bank with the purpose of so applying them and which were immediately so applied was held to be a voidable preference. Rupp v. Commerce Guardian Trust & Savings Co. (C. C. A.) 32 F.(2d) 234; Elliotte v. American Savings Bank & Trust Co. (C. C. A.) 18 F.(2d) 460. We think that a deposit, though made by an insolvent, if in due course of business and really and in good faith intended at the time by the bank to create an equivalent liability to honor the cheeks of the depositor, is not a present depletion of the depositor’s estate, but is a valid banking transaction which may be set off thereafter; but if the bank in accepting the deposit does not intend to become liable to the depositor, but intends to get payment by set-off, the advantage obtained is rendered voidable by a bankruptcy within four months. The difficulty in applying the principle to the present case lies in determining when the deposit shall be considered as effected. For the evidence makes it plain that on May 15th and May 18th, when the cheeks were left with the bank, the bank did not believe the depositor to be insolvent and was not trying to collect the notes, which were not due, but accepted the cheeks in the usual course of business; but on May 21st, the day before the checks were collected, it did know of the insolvency, did determine' to collect the notes, and did make book entries indicating an intent to apply the proceeds of the checks to the notes. Each cheek which was payable in a distant city was tendered and accepted on a deposit slip which stipulated : “Instruments deposited for credit or collection are taken at depositor’s risk until final actual payment is received, and it is expressly understood and" }, { "docid": "9829455", "title": "", "text": "24 S.Ct. 199, 48 L.Ed. 380. This right does not exist if the bank accepts the deposit knowing it is made for a special purpose or is subject to a trust for the creditors of the depositor. Twentieth Street Bank v. Gilmore, 4 Cir., 71 F.2d 594, 597. In January, 1938, appellant began to appropriate deposits of the debtor to its own use by crediting them on the indebtedness of the debtor to it. It is perfectly clear from the evidence that thereafter all the deposits or checks for collection it received from the debtor were used with the obvious intent to apply them on its claim and to gain an advantage Over the other creditors. The record discloses no intention on the part of the bank after January 18, 1938, to hold any of the de posits or collections of the debtor subject to check or that the depositor cotild withdraw them or use them in conducting its business. In our opinion there can be no question that appellant accepted both of the present deposits with the intent to apply them on its note. Kane v. First National Bank, 5 Cir., 56 F.2d 534, 85 A.L.R. 362; Rupp v. Commerce Guardian Trust & Savings Bank, 6 Cir., 32 F.2d 234; Elliotte v. American Savings Bank & Trust Co., 18 F.2d 460; In re Times Square Auto Supply Co., 2 Cir., 47 F.2d 210; May v. Henderson, supra. The findings and conclusions on the subject of summary jurisdiction as found by the Special Master and concurred in by the court were supported by substantial evidence and there is nothing in the record indicating plain mistake. In re Maki, 6 Cir., 18 F.2d 89. The order is affirmed." }, { "docid": "7129813", "title": "", "text": "657; New York County National Bank v. Massey, 192 U. S. 138, 24 Sup. Ct. 199, 48 L. Ed. 380; Lowell v. International Trust Co. (C. C. A. 1st Circuit) 158 Fed. 781, 86 C. C. A. 137, 19 Am. Bankr. Rep. 853; In re Radley Steel Construction Co. (D. C.) 212 Fed. 462, 32 Am. Bankr. R. 514. The last case cited above points out that, while the general relation of debtor and creditor exists between the bank and its customer, yet there is this distinction, namely, that it is the duty of the bank to honor the checks of the customer upon the deposit, and that this gives the bankruptcy court the right to order the payment of such deposit over to the trustee. In the case of Lowell v. International Trust Company, cited above, the Circuit Court of Appeals for the First Circuit discusses the effect of a deposit made in a bank upon the agreement that the same should be for the pro rata benefit of all the creditors of the bankrupt, and holds that such a quasi trust is not enforceable by the trustee. Indeed, it is my opinion that, if any such agreement existed in this case, the adjudication of the bankrupt within four months after such deposits were made freed the fund from such a trust, and gave the bank the right to a set-off. The view that it is the making of the deposit, and not the application of the same to the debt of the bank, that constitutes the preference, is borne out by the concluding part of the decision of the Supreme Court of the United States in the case of Mechanics’, etc., Bank v. Ernst, 231 U. S. 60, 34 Sup. Ct. 22, 58 L. Ed. 121. I am therefore of the opinion that this court has jurisdiction of the case. 2. This brings the court to the consideration of the other ground of the motion filed by the defendant to dismiss the plaintiff’s, petition, to wit, that same sets out no cause of action. This has given the" }, { "docid": "1389894", "title": "", "text": "obligation to pay the depositor’s checks was substituted in equal amount for what the bank got; that there was then no purpose to obtain a preference by set-off;, and the set-off subsequently made was expressly permitted by the Bankruptcy Act., This ruling was followed in Studley v. Boylston Nat. Bank, 229 U. S. 523, 33 S. Ct. 806, 808, 57 L. Ed. 1313, emphasis being laid on the fact that “the deposits were-honestly made, in due course of business, and without an intent to prefer the bank.” The application of the deposit account to the-old notes was made two months before bankruptcy, but was only partial, a substantial account remaining subject to check. These-cases indicate that, while the offset is allowed by the Act, if at the time the deposits are received there is not an intent in good faith to increase the cheeking account but to arrange for an offset, there is in truth not a. deposit but a payment which is a preference. Mechanics’ & Metals’ National Bank v. Ernst, 231 U. S. 60, 34 S. Ct. 22, 58 L. Ed. 121. On this distinction a set-off of the whole of a deposit account which had been accumulated in the usual course of business has been upheld, but a set-off of subsequent deposits which were received by the bank with the purpose of so applying them and which were immediately so applied was held to be a voidable preference. Rupp v. Commerce Guardian Trust & Savings Co. (C. C. A.) 32 F.(2d) 234; Elliotte v. American Savings Bank & Trust Co. (C. C. A.) 18 F.(2d) 460. We think that a deposit, though made by an insolvent, if in due course of business and really and in good faith intended at the time by the bank to create an equivalent liability to honor the cheeks of the depositor, is not a present depletion of the depositor’s estate, but is a valid banking transaction which may be set off thereafter; but if the bank in accepting the deposit does not intend to become liable to the depositor, but intends" }, { "docid": "13728389", "title": "", "text": "was bound, cleared the certificates of any obligation to others, and they thereby became payable to Prince. What was done did not in fact diminish the estate of Prince otherwise available to the creditors in the bankruptcy administration, for the traders holding them would have had the benefit of the deposits under the terms of the certificates and the rules of the Board of Trade. It therefore appears that this essential element of a preferential transfer within the meaning the Bankruptcy Act, diminution of the bankrupt, estate, is wanting. The fact that what was done worked to the benefit of the creditor and in a sense gave him a preference is not enough, unless the estate of the bankrupt was thereby diminished.” In reference to the application of the deposit credit of $575.79, the court said: “As to the $575.79, we think the right to set off this deposit is established by the principles laid down in New York County National Bank v. Massey, supra. Here there was a deposit subject to be checked out by the bankrupt for specific purposes. The money was not placed in the bank with a view to giving it a benefit, except indirectly, because of the deposit. It was subject to Prince’s check, and all of it might have been checked out for the purposes intended.”. In our opinion, these three foregoing cases are decisive of the case at bar. In the present case items of deposit from September 2d to October 31st were received in the usual course of business. There is no evidence that a deposit was built up for the benefit of the bank, and there is no claim made to that effect. Checks were drawn against the deposit account, and the amount of the deposit account varied during the above period from $18,000 to $5,000. The cases of Mechanics’ & Metals National Bank v. Ernst, 231 U. S. 60, 34 Sup. Ct. 22, 58 L. Ed. 121, National City Bank v. Hotchkiss, 231 U. S. 50, 34 Sup. Ct. 20, 58 L. Ed. 115, and In re National Lumber Co.," }, { "docid": "5179373", "title": "", "text": "has not yet been entered on the debtor’s actions under §§ 547 and 542. Section 502(d) embraces the situation where the debtor or the trustee successfully prosecutes an action against a party under one of the sections designated in that section. In the event the party refuses to comply with the judgment, the court must disallow that party’s claim to prevent it from sharing in the distribution of the bankruptcy estate. 3 Collier on Bankruptcy ¶ 502.04 (15th ed. 1982). Thus, in the case confronting us § 502(d) is not yet operative since no judgment has yet been entered on the debtor’s claims. In addressing the merits of § 502(d) the debtor cites authority which states that in a preference action brought by the debt- or or the trustee, the defendant cannot set-off his liability on the preference against the original debt that was putatively satisfied with the preferential transfer. Mechanics’ Bank v. Ernst, 231 U.S. 60, 62, 34 S.Ct. 22, 58 L.Ed. 121 (1913); Rotan Grocery Co. v. West, 246 F. 685, 686 (5th Cir.1917); Walker v. Wilkinson, 296 F. 850, 852 (5th Cir.1924), cert. den. 262 U.S. 746, 43 S.Ct. 522, 67 L.Ed. 1212; Shaw v. Walter E. Heller & Co., 385 F.2d 353, 357 (5th Cir.1967), cert. den. 390 U.S. 1003, 88 S.Ct. 1248, 20 L.Ed.2d 104. In the absence of this rule no preference action could be successfully maintained. As stated in Walker, 296 F. at 852: It has been decided that, in an action by a trustee to recover money paid a creditor by way of preference, the creditor cannot set off against his liability for the return of the preferential payments the original debt on which the payments were applied. Rotan Grocery Co. v. West, 246 Fed. 685, 158 C.C.A. 641; Mechanics’ Bank v. Ernst, 231 U.S. 60, 34 Sup.Ct. 22, 58 L.Ed. 121. The reason is, to permit this to be done would defeat the right to recover the preference, and render the statute futile. In such a case the transaction is single, and results in a depletion of the fund that would" }, { "docid": "11948038", "title": "", "text": "cause of action alleged against the bank was that deposits made by the bankrupt between December 15th and December 27th, although made in his checking account, were intended to be used and were in fact used to pay off an antecedent debt of $1,000 owed by the bankrupt to the bank, this at a time when the bankrupt was insolvent, within four months of bankruptcy, and when the bank had knowledge or reasonable cause to believe that payment of the debt would give it a preference over other creditors. If these allegations were true, the deposits were voidable preferences under section 60 of the Bankruptcy Act, 11 U.S.C.A. § 96. Deposits accepted by a bank with intent to' apply them on a pre-existing claim against the depositor rather than to hold them subject to the depositor’s checks in ordinary course are given their intended effect when so applied, that is to say, they are payments on account of the debt; and if they were made when the depositor was insolvent and within four months of bankruptcy, with knowledge or reasonable cause to believe on the bank’s part that the depositor was insolvent, they are recoverable by a trustee in bankruptcy as voidable preferences. Elliotte v. American Savings Bank & Trust Co., 6 Cir., 18 F.2d 460; Kane v. First Nat. Bank, 5 Cir., 56 F.2d 534, 85 A.L.R. 362; Plymouth County Trust Co. v. McDonald, 1 Cir., 60 F.2d 94. See also Citizens’ Nat. Bank v. Lineberger, 4 Cir., 45 F.2d 522; Matters v. Manufacturers’ Trust Co., 2 Cir., 54 F.2d 1010; Stevens v. Bank of Manhattan Trust Co., 2 Cir., 66 F.2d 502. The pleadings and the proof presented a case of the character discussed in the authorities cited above. The trial court took an erroneous view of the law and failed to make findings on the essential issues: whether the bank in receiving the deposits made between December 15th and December 27th intended to apply them in payment or set-off on the notes held by it, whether the bankrupt was then insolvent, whether the bank knew or had" }, { "docid": "23259126", "title": "", "text": "under the broad definition of § 1(30) of the Bankruptcy Act and hence cannot constitute a preference under § 60 a. The point was perhaps best put by Judge Parker in Citizens' Nat'l Bank of Gastonia v. Lineberger, supra, 45 F.2d at 526-27, when he said: [A deposit in a bank] does not deplete the estate of the depositor, but results in substituting for currency, bank notes, checks, drafts, and other bankable items a corresponding credit with the bank, which may be checked against . A deposit of funds differs from a payment in the essential particular that it is withdrawable at the will of the depositor. On the other hand, when either the depositor or the bank intends that a particular deposit may not be withdrawn but must be used to satisfy the bank’s claim, the deposit does “deplete the estate of the depositor” and constitutes a voidable preference if the other requirements of § 60 a are met. These include the requirement that the transfer be made within four months before the filing of the petition, see note 20 supra. The reason that many of the cases denying setoff of nonwithdrawable deposits do not discuss the four-months requirement of § 60 a(l) is not because it does not apply but because it was so clearly satisfied. See, e. g., Merrimack Nat’l Bank v. Bailey, 289 F.2d 468, 470 (1 Cir.), cert. denied, 263 U.S. 704, 44 S.Ct. 33, 68 L.Ed. 515 (1923) (requirement mentioned); Goldstein v. Franklin Square Nat’l Bank, 107 F.2d 393 (2 Cir. 1939) (requirement mentioned); Mayo v. Pioneer Bank & Trust Co., 270 F.2d 823, 834 (5 Cir. 1959), cert. denied, 362 U.S. 962, 80 S.Ct. 878, 4 L.Ed.2d 877 (1960) (requirement mentioned); Farmers Bank of Clinton v. Julian, 383 F.2d 314 (8 Cir.), cert. denied, 389 U.S. 1021, 88 S.Ct. 593 (1967) (requirement met); Katz, supra, 568 F.2d at 969 (assumes trustee could prove elements necessary to show existence of preference apart from requirement that there has been a transfer). See also In re Scheer Lighting Studios, Inc., 40 F.2d 955 (E.D.N.Y.), aff’d, Arnold" }, { "docid": "14528140", "title": "", "text": "of the property of a debtor to or for the benefit of a creditor for or on account of an antecedent debt, made or suffered by such debtor while insolvent and within four months before the filing by or against him of the petition in bankruptcy, * * * the effect of which transfer will be to enable such creditor to obtain a greater percentage of his debt than some other creditor of the same class” (Emphasis by the Court.) It seems reasonably clear, upon proper construction of this section, that there can be no preference in the absence of any one or more of the elements. ' The sales of the accounts receivable in the instant case were for a present consideration and many of them were made more than four months prior to the bankruptcy. The contemporaneous assignments of the accounts receivable were not made in payment of or as security for an antecedent debt, and the relationship between the Bankrupts and the Corporation at the time of the assignments was not that of debtor and creditor. The essential elements of a preference, as defined in the Act, were obviously lacking. Hurley v. Atchison, Topeka & Santa Fe R., 213 U. S. 126, 29 S.Ct. 466, 53 L.Ed. 729; Keystone Warehouse Co. v. Bissell, 2 Cir., 203 ,F. 652; Ernst v. Mechanics’ & Metals National Bank, 2 Cir., 201 F. 664; In re Kayser, 3 Cir., 177 F. 383; In re Shipley Stave & Lumber Co., D.C., 29 F.Supp. 746. The transfer of property in the usual course of business for a present adequate consideration, and not in payment of or security for an antecedent debt, is not a preference. In re Pusey-Maynes-Breish Co., D.C., 37 F.Supp. 316, affirmed 3 Cir., 122 F.2d 606; Doggett v. Chelsea Trust 'Co., 1 Cir., 73 F.2d 614, 617. Such a transfer does not effect a depletion of the bank.rupt’s property to the injury of other creditors, an essential element of a preference, Continental Trust Co. v. Chicago Title .Co., 229 U.S. 435, 443, 33 S.Ct. 829, 57 L.Ed. 1268; Newport Bank" }, { "docid": "5394694", "title": "", "text": "or transfer would effect a preference, it shall be voidable by the trustee and he may recover the property or its value from such person. And for the purpose of such recovery any court of bankruptcy, as hereinbefore defined, and any State court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction.” 30 Stat. 562, as amended, June 25, 1910, 36 Stat. 842. 11 U.S.C.A. § 96, sub. b. “Sec. 68, sub. a. In all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor the account shall be stated and one debt shall be set off against the other, and the balance only shall be allowed or paid.” 30 Stat. 565, 11 U.S.C.A. § 108, sub. a. See New York County Bank v. Massey, 192 U.S. 138, 24 S.Ct. 199, 48 L.Ed. 380; Studley v. Boylston National Bank, 229 U.S. 523, 33 S.Ct. 806, 57 L.Ed. 1313. If both depositor and the bank intend, at the time the deposit is made, that it be subject to withdrawal and not applied to payment of the depositor’s debt to the bank, the transaction does not constitute a transfer under § 60, sub. a of the Bankruptcy Act. Hence, such a deposit could not be a preference, much less a voidable one, and the bank may subsequently, under § 68, sub. a set it off against the depositor’s debt. New York County Bank v. Massey, 192 U.S. 138, 24 S.Ct. 199, 48 L.Ed. 380; Studley v. Boylston National Bank, 229 U.S. 523, 33 S.Ct. 806, 57 L.Ed. 1313. If, however, the deposit is given by the depositor or received by the bank as a payment on the depositor’s note, a transfer occurs which may constitute a voidable preference. Mechanics & Metals National Bank of New York v. Ernst, 231 U.S. 60, 34 S.Ct. 22, 58 L. Ed. 121. See cases discussed and cited in note 85 A.L.R. 369. In order that a transfer be either a preference under § 60, sub. a or a voidable preference under § 60, sub. b" }, { "docid": "13728390", "title": "", "text": "by the bankrupt for specific purposes. The money was not placed in the bank with a view to giving it a benefit, except indirectly, because of the deposit. It was subject to Prince’s check, and all of it might have been checked out for the purposes intended.”. In our opinion, these three foregoing cases are decisive of the case at bar. In the present case items of deposit from September 2d to October 31st were received in the usual course of business. There is no evidence that a deposit was built up for the benefit of the bank, and there is no claim made to that effect. Checks were drawn against the deposit account, and the amount of the deposit account varied during the above period from $18,000 to $5,000. The cases of Mechanics’ & Metals National Bank v. Ernst, 231 U. S. 60, 34 Sup. Ct. 22, 58 L. Ed. 121, National City Bank v. Hotchkiss, 231 U. S. 50, 34 Sup. Ct. 20, 58 L. Ed. 115, and In re National Lumber Co., 212 Fed. 928, 129 C. C. A. 448, are cited by counsel for the trustee. But in all these cases the deposits in question were not received in the usual course of business, but were “built up” or deposited under unusual circumstances, for the express purpose of giving a preference to the bank. The so-called deposits were deposits merely in name, but in fact were payments. In the case at bar the referee found: “In the present matter there is no circumstance proven which would justify the conclusion that the bankrupt had been accumulating funds on deposit for the purpose of liquidating the bank’s debt. On the contrary, every circumstance indicates that the amount to the credit of the bankrupt was a balance resulting from transactions in the usual, ordinary course of business.” This distinction between deposits made in the usual course of business, even by an insolvent depositor, and deposits made for the purpose of giving a preference to a bank, has been recently emphasized by this court in German-American State Bank v. Larimer," }, { "docid": "5141652", "title": "", "text": "relieve the transfer of funds here involved from any taint of “preferences”, as' they were transfers made in good faith and for a new and present consideration and in compliance with state law. 4A, Remington, 1952 Supplement, page 16, section 1656. It may also be observed that assignments within 4 months for present security are not preferential. Associated Seed Growers v. Geib, 4 Cir., 125 F.2d 683; Doggett v. Chelsea Trust Co., 1 Cir., 73 F.2d 614; McCluer v. Heim-Overly Realty Co., 8 Cir., 71 F.2d 100. The funds in the hands of the defendant (which were paid into the registry of the court) were impressed with a trust or equitable lien in favor of the plaintiff as set out above. These rights are superior to the rights of the Trustee in bankruptcy; and are thus protected in the hands of defendant for payment of plaintiff’s indebtedness. Johnson v. Root Mfg. Co., supra; Walker v. Brown, supra; Walton Land & Timber Co. v. Runyan, 5 Cir., 269 F. 128; In re Cramond, 145 F. 966. Assignments to enable a debt- or to continue in business are valid. In re Grocers’ Baking Co., D.C., 266 F. 900, affirmed 5 Cir., 277 F. 1015; Hurley v. Atchison, T. & S. F. R., supra; Greey v. Dockendorff, 231 U.S. 513, 34 S.Ct. 166, 58 L.Ed. 339. Payments for present consideration are not preferential. In re Mosh-er, D.C., 224 F. 739; Lake View State Bank v. Jones, 7 Cir., 242 F. 821; In re Bernard & Katz, 2 Cir., 38 F.2d 40; Adams v. City Bank & Trust Co. of Macon, Ga., 5 Cir., 115 F.2d 453, 134 A.L.R. 1215; Sullivan v. Myer, 137 Tenn. 412, 193 S.W. 124. Payments are not preferential where they do siot diminish the estate. National Bank of Newport v. National Herkimer County Bank, 225 U.S. 178, 184, 32 S.Ct. 633, 56 L.Ed. 1042; Bailey v. Baker Ice Machine Co., 239 U.S. 268, 274, 36 S.Ct. 50, 60 L.Ed. 275; New York County Nat. Bank v. Massey, 192 U.S. 138, 147, 24 S.Ct. 199, 48 L.Ed. 380; Adams v." }, { "docid": "5394695", "title": "", "text": "be subject to withdrawal and not applied to payment of the depositor’s debt to the bank, the transaction does not constitute a transfer under § 60, sub. a of the Bankruptcy Act. Hence, such a deposit could not be a preference, much less a voidable one, and the bank may subsequently, under § 68, sub. a set it off against the depositor’s debt. New York County Bank v. Massey, 192 U.S. 138, 24 S.Ct. 199, 48 L.Ed. 380; Studley v. Boylston National Bank, 229 U.S. 523, 33 S.Ct. 806, 57 L.Ed. 1313. If, however, the deposit is given by the depositor or received by the bank as a payment on the depositor’s note, a transfer occurs which may constitute a voidable preference. Mechanics & Metals National Bank of New York v. Ernst, 231 U.S. 60, 34 S.Ct. 22, 58 L. Ed. 121. See cases discussed and cited in note 85 A.L.R. 369. In order that a transfer be either a preference under § 60, sub. a or a voidable preference under § 60, sub. b it is essential that at the time the debtor be insolvent. See note 2 supra. Under § 60, sub. b of the Bankruptcy Act, as amended June 25, 1910, 36 Stat. 842, the distinguishing characteristic between a voidable preference and one that cannot be disturbed, is that in the former case the creditor must at the time . of the transfer “have reasonable cause to believe that the * * * transfer would effect a preference”. See Pirie v. Chicago Title & Trust Company, 182 U.S. 438, 446, 447, 21 S.Ct. 906, 45 L. Ed. 1171. By § 60, sub. a, 30 Stat. 562, 11 U.S.C.A. § 96, sub. a, a preference is defined as a transfer the effect of which enables any one creditor to obtain a greater percentage of his debts than any other creditor of the same class. This presupposes insolvency in the bankruptcy sense, i. e., liabilities in excess of'assets. See 30 Stat. 544, 11 U.S.C.A. § 1(19), and Pirie v. Chicago Title & Trust Co., supra, 182 U.S. at page" }, { "docid": "22865751", "title": "", "text": "the balance only shall be allowed or paid. b. A set-off or counterclaim shall not be allowed in favor of any debtor of the bankrupt which (1) is not provable against the estate and allowable under subdivision g of section 93 of this title; or (2) was purchased by or transferred to him after the filing of the petition or within four months before such filing, with a view to such use and with knowledge or notice that such bankrupt was insolvent or had committed an act of bankruptcy. July 1, 1898, 541, § 68, 30 Stat. 565; June 22, 1938, c. 575, § 1, 52 Stat. 878.” . Ordinarily a deposit in a bank is not a transfer under Section 96(a) and cannot be a preference. Studley v. Boylston National Bank, 1913, 229 U.S. 523, 33 S.Ct. 806, 57 L.Ed. 1313; New York County Nat. Bank v. Massey, 1904, 192 U.S. 138, 24 S.Ct. 199, 48 L.Ed. 380. If, however, the deposit is given by the depositor or received by the bank as payment of a debt, a transfer occurs that might be a voidable preference. Mechanics & Metals National Bank of City of New York v. Ernst, 1913, 231 U.S. 60, 34 S.Ct. 22, 58 L.Ed. 121." }, { "docid": "673473", "title": "", "text": "192 U.S. 138, 147, 24 S.Ct. 199, 48 L.Ed. 380 (1904). Section 68 is applicable where the bankrupt makes a deposit in his bank account in good faith and in the due course of business, and where the deposit is subject to withdrawal at the will of the depositor. See Joseph F. Hughes & Co. v. Machen, 164 F.2d 983, 987 (4th Cir. 1947), cert. denied, 333 U.S. 881, 68 S.Ct. 912, 92 L.Ed. 1156 (1948). If the deposit is accepted by the bank with an intent to apply it “on a pre-existing claim against the depositor rather than to hold [it] subject to the depositor’s checks in ordinary course,” however, the deposit is viewed legally as a transfer in payment of the debt. As such, it may be recovered by the trustee where the elements of a voidable preference are otherwise satisfied. Goldstein v. Franklin Square National Bank, 107 F.2d 393, 394 (2d Cir. 1939); Mayo v. Pioneer Bank & Trust Co., 270 F.2d 823, 836 (5th Cir. 1959), cert. denied, 362 U.S. 962, 80 S.Ct. 878, 4 L.Ed.2d 877 (1960); 4 Collier ¶ 68.16[2] at 919-920.1. The deposits to AIBC’s account on November 2 and 19 were clearly made and accepted by the New York Bank as payments of AIBC’s debts, not as ordinary deposits. Thus, the Bank’s internal documents record the credits made to AIBC’s account and the subsequent debits in favor of the Bank as “Repayment of advance” of May 3 and May 17, 1973, and “re: your [AIBC’s] letter 5/15/73.” Since the Bank at no time intended to treat the payments as ordinary deposits into AIBC’s account, it may not invoke the sanction of § 68 to protect itself from the Trustee’s action under § 60. B. Pledge and Assignment: The First Loan Section 60(a)(2) of the Bankruptcy Act incorporates state law to determine the date on which a transfer is deemed perfected against subsequent lien creditors. See McKenzie v. Irving Trust Co., 323 U.S. 365, 370, 65 S.Ct. 405, 89 L.Ed. 305 (1945). The parties agree that the law of New York should be" } ]

[ { "docid": "23271717", "title": "", "text": "1964. It provides: In any action or proceeding under this Title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. U.S. Steel contends that Section 706(k) authorizes, as part of the costs, the grant of an attorney’s fee against the EEOC in a proper case. Furthermore, U.S. Steel claims that the district court’s denial of an attorney’s fee in this case should be reversed because the district court based its decision on an incorrect standard for the award of an attorney’s fee. The EEOC erects a twofold defense against the imposition of an attorney’s fee. First, the EEOC takes the position that a proper statutory analysis, based on the legislative history, would conclude that Congress did not intend to permit an award of an attorney’s fee against the EEOC in favor of a private defendant. Further, the EEOC contends, even if the power to make such an award exists, the district court nevertheless did not abuse its discretion here in declining to compel an attorney fee payment. Only one circuit has squarely addressed the question of statutory authorization for the award of an attorney’s fee against the EEOC when it brings an unsuccessful action. The Ninth Circuit considered the matter in Van Hoomissen v. Xerox Corp. There, the court began its analysis of Section 706(k) by remarking, “Unless the meaning of ‘costs’ changes during the eleven words which separate its two usages, it is clear that attorney’s fees can be assessed against the Commission.” Since the EEOC in Van Hoomissen maintained that two different meanings were, in fact, intended by Congress, the court examined the legislative history of Section 706(k) with some care. The court in Van Hoomissen acknowledged that the legislative history of the Act appeared to lend some support tó the EEOC interpretation. However, the Court noted that the Congress did not evince a specific intent to exclude an attorney’s fee from" } ]

[ { "docid": "460201", "title": "", "text": "the [complainant’s] representative, and the agency cannot reach an agreement on the amount of attorney’s fees or costs ... the agency shall issue a decision determining the amount of attorney’s fees or costs due.... The decision shall include a notice of right to appeal to the EEOC.... 29 C.F.R. § 1614.501 (e)(2)(ii)(A) (1995). . The Agency did not dispute the amount of costs requested by Chris with regard to her third complaint of discrimination. . An award of attorney’s fees and costs under Title VII is authorized by 42 U.S.C. § 2000e-5(k), which states: In any action or proceeding under this sub-chapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee (including expert fees) as part of the costs, and the Commission and the United Slates shall be liable for costs the same as a private person. 42 U.S.C. § 2000e-5(lt). . Although Chris is an employee of the federal government, the ability of federal employees to seek attorney’s fees and costs is subject to the same statutory provisions as private sector employees. See 42 U.S.C. § 2000e-16(d) (incorporating by reference 42 U.S.C. § 2000e-5(f) through (k) to any \"civil action[ ]” brought by a federal employee under Title VII). . 42 U.S.C. § 1988(b) provides: In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. § 2000bb et seq.l title VI of the Civil Rights Act of 1964 [42 U.S.C. § 2000d et seq.}, or Section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.... 42 U.S.C. § 1988(b) (footnote omitted). . Because we conclude that the district court lacked subject matter jurisdiction under 42 U.S.C. § 2000e-5(f)(3), we need not address the CIA’s alternative argument that Chris, upon agreeing that any fee dispute would" }, { "docid": "13454145", "title": "", "text": "BOWNES, Circuit Judge. This ease involves the award of attorney’s fees and costs under 42 U.S.C. § 2000e-5(k). In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. Plaintiff, a black female employed by the federal government, brought an individual employment discrimination suit pursuant to the 1972 Amendments to Title VII, 42 U.S.C. § 2000e-16. The case was settled prior to trial on terms favorable to plaintiff. The district court specifically found “that the plaintiff is a ‘prevailing party’ within the meaning of the statute.” Plaintiff’s lead counsel was awarded $2,500 in fees for 102.5 hours of work, but the district court denied other counsel any fees, although there was a claim of 136.2 hours of work. Lead counsel was a private practitioner and other counsel were NAACP Legal Defense Fund staff attorneys. The plaintiff was not awarded any costs, as distinct from attorney’s fees. The appeal focuses on the denial of the district court to award any attorney’s fees to other counsel and its failure to award costs to plaintiff. Although the district court quite properly used Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974), as a guide in determining the amount of attorney’s fees, its opinion was rendered prior to our decision in King v. Greenblatt, 560 F.2d 1024 (1st Cir. 1977). In Greenblatt, we reviewed Johnson and also considered Stanford Daily v. Zurcher, 64 F.R.D. 680, 682 (N.D.Cal.1974), aff’d, 550 F.2d 464 (9th Cir.), cert. granted,-U.S.-, 98 S.Ct. 52, 54 L.Ed.2d 70 (1977), and Rainey v. Jackson State College, 551 F.2d 672, 677 (5th Cir. 1977), in setting forth the factors to be considered by a district court in determining reasonable attorney’s fees in the civil rights field. While our discussion in Greenblatt did not focus on the precise question involved here, we think it made clear that where" }, { "docid": "16066148", "title": "", "text": "MEMORANDUM DECISION AND ORDER SPATT, District Judge. In this gender discrimination in employment action, the plaintiff Mary Ann Luciano (the “plaintiff’ or “Luciano”), moves for an award of attorneys fees and costs, pursuant to § 42 U.S.C. 2000e-5(k). Familiarity with the procedural history and facts of this case as set forth in the Court’s prior decisions is presumed. DISCUSSION A. Prevailing party “The general ‘American Rule’ is that the prevailing party in federal court litigation is not entitled to recover legal fees incurred in the conduct of that litigation.” United States v. 110-118 Riverside Tenants Corp., 5 F.3d 645, 646 (2d Cir.1993) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616-17, 44 L.Ed.2d 141 (1975)). However, the statute governing employment discrimination actions provides: In any action or proceeding under this subchapter the court, in its discretion may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. 42 U.S.C. § 2000e-5(k); see also Fisher v. Vassar College, 70 F.3d 1420, 1453 (2d Cir.1995) (“only a ‘prevailing party’ may recover attorneys fees and costs in a civil rights action”). On November 9, 1995, following a month-long trial, the jury returned a verdict in favor of Luciano and awarded her damages in the following amounts: compensatory damages of $150,714.00 for back pay including salary and bonuses, emotional distress damages in the sum of $11,400.00, other expenses in the sum of $17,713.00 and punitive damages in the sum of $5,000,002.00. In a Memorandum Decision dated January 27, 1996, as amended by the Court’s Order dated January 29, 1996, the Court (1) denied the defendants’ motion pursuant to Fed.R.CivJP. 50 for judgment as a matter of law or a new trial, finding that the verdict with regard to liability and damages was supported by the evidence; (2) denied the defendants’ motion to vacate the punitive damage award, but reduced the $5,000,002.00 sum to the statutory" }, { "docid": "23680956", "title": "", "text": "in actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) states, In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. A similar provision added to 42 U.S.C. § 1988 in 1976 applies to cases under other Civil Rights Act sections, including 42 U.S.C. §§ 1981, 1983, 1985, and 2000d et seq., and states, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” Although in plain language these statutes declare that the award of attorneys’ fees is within the court’s discretion, most courts considering these and similar civil rights statutes have held the scope of discretion is quite narrow. In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), the Supreme Court refused to hold that under 42 U.S.C. § 2000a-3(b) attorneys’ fees should be awarded only when defendant acts in bad faith. Emphasizing the important policy behind the Civil Rights Act of encouraging plaintiffs to act as private attorneys general, the Court declared that “one who succeeds in obtaining an injunction under that Title [II] should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Id. at 402, 88 S.Ct. at 966. Later, in Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), the Supreme Court stated in dictum, “There is, of course, an equally strong public interest in having injunctive actions brought under Title VII, to eradicate discriminatory employment practices. But this interest can be vindicated by applying the Piggie Park standard to the attorneys' fees provision of Title VII, 42 U.S.C. § 2000e-5(k) . . . .” Id. at 415, 95 S.Ct. at 2370 (emphasis in original). Cf. Northcross v. Board of Educ., 412 U.S." }, { "docid": "9557161", "title": "", "text": "v. District No. 9 of International Association of Machinists and Aerospace Workers, 651 F.2d 574, 583 (8th Cir.1981) (suggesting either a twenty-one day rule or delay of entry of final judgment until determination of claim for attorneys’ fees). See also White, 455 U.S. at 455, 102 S.Ct. at 1168, 71 L.Ed.2d at 334 (Blackmun, J., concurring) (approving Obin’s general approach to problem). VACATED AND REMANDED. . E.E.O.C. v. D.H. Holmes Co., Ltd., 556 F.2d 787 (5th Cir.1977), cert, denied, 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1978). . 42 U.S.C.A. § 2000e-5(k) provides: “In any action or proceeding under this subchapter [dealing with employment discrimination] the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.” . Knighton concerned a request for attorneys’ fees under 42 U.S.C.A. § 1988, which provides in part: “... In any action or proceeding to enforce a provision of [certain civil rights laws], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” It is unclear whether the request for fees in Jones was under section 1988 or section 2000e-5(k). We see no reason for distinguishing between the two sections for purposes of this case. See Obin v. District No. 9 of Int’I Ass’n of Machinists and Aerospace Workers, 651 F.2d 574, 578-79 n. 5 (8th Cir.1981). Cf. Hughes v. Rowe, 449 U.S. 5, 14 — 15, 101 S.Ct. 173, 178-179, 66 L.Ed.2d 163 (1980) (same factors apply in determining prevailing defendant’s right to attorneys’ fees under section 1988 as under section 2000e-5(k)); Lopez v. Aransas County Independent School Dist., 570 F.2d 541, 545 (5th Cir.1978) (same). . “[A] district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in" }, { "docid": "23576830", "title": "", "text": "SUPPLEMENTAL OPINION EUGENE A. WRIGHT, Circuit Judge: Van Hoomissen sued Xerox, his former employer, under Title VII of the Civil Rights Act of 1964 [42 U.S.C. § 2000e-2(a)], alleging that Xerox fired him and engaged in other acts of retaliation because of his efforts to recruit minorities. The Equal Opportunity Commission sought leave to intervene under 42 U.S.C. § 2000e-5(f)(1) and Fed.R.Civ.P. 24(b). In its proposed complaint in intervention, EEOC alleged that Xerox both engaged in discriminatory hiring practices and had unlawfully retaliated against Van Hoomissen. The district court granted EEOC leave to intervene, limited to the issue of retaliation, EEOC appealed, claiming that it should have been permitted to challenge Xerox’s alleged discriminatory hiring practices in its complaint in intervention. We dismissed the appeal in Van Hoomissen v. Xerox Corp., 497 F.2d 180 (9th Cir. 1974). Xerox now petitions this court, pursuant to § 706(k) of the Act [42 U.S.C. § 2000e-5(k)], for an award of attorney’s fees as part of its costs on appeal. Section 706(k) provides: In any action or proceeding under this subehapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. On its face, this section authorizes an award of attorney’s fees against the Commission. The word “costs” is used twice. In its first occurrence, it is clear that it includes attorney’s fees, since the latter is explicitly denominated “a part of the costs.” In the second reference, “costs” are assessable against the Commission. Unless the meaning of “costs” changes during the eleven words which separate its two usages, it is clear that attorney’s fees can be assessed against the Commission. The Commission makes an ingenious and indeed persuasive argument, based on the legislative history of the section, that Congress did not intend the second occurrence of “costs” to include attorney’s fees even though it did intend attorney’s fees be included in the first provision for “costs.” The Commission" }, { "docid": "14794034", "title": "", "text": "‘trial by affidavits.’ ” Id. (quoting United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)). Courts are reluctant to dismiss by summary judgment Title VII discrimination suits where motive and intent are crucial elements and the proof is in the hands of the alleged wrongdoers. Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 759 (9th Cir.1980); see Gifford v. Atchison, Topeka, & Santa Fe Railroad Co., 685 F.2d 1149, 1156 (9th Cir.1982) (EEOC finding of reasonable cause to believe that female plaintiff had been treated differently than similarly situated male employees was at least sufficient to create issue of fact as to employer’s motive in terminating plaintiff, rendering resolution of issue on summary judgment improper). Proctor’s allegations of discriminatory motive, supported by her testimony that (1) her supervisors at Consolidated believed that they were under no obligation to accommodate her in her new position as a balancing clerk, and (2) Kowalski stated that Consolidated would not make any effort to accommodate her in her new position, raise an issue of fact which was im properly resolved by the district court on summary judgment. IV. ATTORNEY’S FEES Proctor requested attorney’s fees in the event that she succeeded on this appeal, pursuant to 42 U.S.C. § 2000e-5(k). Section 2000e-5(k) provides: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs---- Proctor argues that an interim fee award is justified on this interlocutory appeal because it is “sufficiently significant and discrete to be treated as a separate unit.” See Smallwood v. National Can Co., 583 F.2d 419, 421 (9th Cir.1978) (fees awarded to prevailing party on appeal from issuance of permanent injunction); Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974) (fees awarded to successful party on appeal from denial of EEOC’s motion to intervene on particular issues). We disagree. A subsequent Supreme Court opinion casts doubt upon the applicability of the rationale employed in Small-wood and Van Hoomissen to" }, { "docid": "5972632", "title": "", "text": "Act of 1964 for alleged discrimination in employment and these sections do not authorize an award of punitive damages in such an action. Equal Employment Opportunity Commission v. Detroit Edison Co., 515 F.2d 301 (6 Cir. 1975); Loo v. Gerarge, 374 F.Supp. 1338 (D.Hawaii 1974); Howard v. Lockheed-Georgia Co., 372 F.Supp. 854 (N.D.Ga.1974); Reid v. Memphis Publishing Co., 369 F.Supp. 684 (W.D.Tenn.1973), aff’d., 521 F.2d 512 (6 Cir. 1975); Van Hoomissen v. Xerox Corp., 368 F.Supp. 829 (N.D.Cal.1973). Therefore, Plaintiff’s allegations and prayer for punitive damages should be stricken as requested by Defendants. Defendant Reed is directed to Answer Plaintiff’s Complaint within 20 days of this date. . 42 U.S.C. § 2000e-5(g) provides in part: “If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. . . ” . 42 U.S.C. § 2000e-5(k) provides in part: “[T]he court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee . . . ” . 42 U.S.C. § 2000e et seq." }, { "docid": "6414013", "title": "", "text": "seq.] ... or title VI of the Civil Rights Act of 1964 [42 U.S.C. §§ 2000d et seq.], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. Similarly, Congress has provided for award for attorney’s fees in actions brought under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-5(k) provides: In any action or proceeding under this title [42 U.S.C. § 2000e et seq.] the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the cost, and the Commission and the United States shall be liable for costs the same as a private person. The United States Supreme Court has twice considered the question of whether a prevailing defendant in an action brought under Title VII or 42 U.S.C. § 1983 may recover attorney’s fees from a plaintiff. In Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648, (1978), the Court held that under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., a Federal District Court may award attorney fees to a prevailing defendant only upon a finding that the plaintiff’s action was frivolous, unreasonable, without foundation, or brought in bad faith. In discussing the matter, the court said: [I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claim, for seldom can a prospective plaintiff be sure of ultimate success.... . . . [To assess] attorney’s fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his" }, { "docid": "19858880", "title": "", "text": "VII proceedings that clearly demonstrate no possible merit. It is so ORDERED. . That subsection provides: “(k) In any action or proceeding under this title [§§ 2000e-2000e-15 of this title] the court, in its discretion, may allow the prevailing party, other than the [Equal Employment Opportunity] Commission or the United states, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for the costs the same as a private person.” 42 U.S.C. § 2000e-5(k). . See generally, 16 A.L.R.Fed. 643, §§ 5, 6 (Supp.1978). . See also United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973); Hernandez v. Powell, 424 F.Supp. 479, 481 (N.D.Tex.1977); Shaffield v. Northrop Worldwide Aircraft Services, Inc., 373 F.Supp. 937 (N.D.Ala.1974); United States v. United States Steel Corp., 371 F.Supp. 1045, 1063-64 (N.D.Ala.1973), vacated in part and appeal dismissed in part, 520 F.2d 1043 (5th Cir. 1975); Sabala v. Western Gillette, Inc., 371 F.Supp. 385, 393-94 (S.D.Tex. 1974), aff'd in part and rev’d and remanded in part, 516 F.2d 1251 (5th Cir. 1975). . Cf., Goff v. Texas Instruments, Inc., 429 F.Supp. 973 (N.D.Tex.1977), where Judge Hill of this Division permitted an award of attorneys’ fees against a plaintiff who had litigated in bad faith. . Such factors may include time and labor required, the novelty and difficulty of the question involved and the skill required to perform the legal service properly; the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; the fee customarily charged in the locality for similar legal services; the amount involved and the results obtained; the time limitations imposed by the client or by the circumstances; the nature and length of the professional relationship with the client; the experience, reputation, and ability of the lawyer performing the services; and whether the fee is fixed or contingent. Certainly, several of these factors appear to suggest the relationship of a plaintiff and his attorney; nevertheless, the defendant may include in his statement of costs sought any of the above factors that it believes are relevant" }, { "docid": "14188346", "title": "", "text": "of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k). That section provides: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs. In Van Hoomissen v. Xerox Corp., 503 F.2d 1131 (9th Cir.1974), the plaintiff brought suit against Xerox claiming that it had fired him in retaliation for his efforts to recruit minorities. The Equal Employment Opportunity Commission (“EEOC”) then sought to intervene both to support plaintiff’s claim and to allege that Xerox engaged in discriminatory hiring practices. The court granted the motion limited to supporting plaintiff’s claim, and the EEOC appealed. After the Ninth Circuit dismissed the appeal, Xerox petitioned the court of appeals for an award of interim attorneys’ fees under § 2000e-5(k) and the court granted the petition. Although the court noted that fees should not be granted every time a party prevails on a procedural motion, it concluded that in that case Xerox’s victory, as a final determination in that litigation of EEOC’s hiring discrimination claim, was “sufficiently significant and discrete to be treated as a separate unit.” Van Hoomissen, 503 F.2d at 1133. The Ninth Circuit reaffirmed Van Hoomissen in Smallwood v. National Can Co., 583 F.2d 419 (9th Cir.1978). In Smallwood plaintiff brought suit against his employer alleging racial discrimination. He subsequently added his union as a defendant, charging that it had retaliated against him for filing the lawsuit. Prior to considering the merits of the discrimination claim, the court held a hearing and determined that the union had retaliated against plaintiff in violation of the Act. It permanently enjoined the union from any further retaliation and awarded plaintiff interim fees and costs. The Ninth Circuit affirmed, again finding that the claim against the union was “sufficiently significant and discrete to be treated as a separate unit.” See also Yakowicz v. Commonwealth of Pennsylva nia, 683 F.2d 778, 781-82 & n. 5 (3d Cir. 1982) (citing Smallwood with approval). Similarly, many courts have awarded interim fees in Title YII actions after" }, { "docid": "14484297", "title": "", "text": "be barred by the statute of limitations if an action on the merits were so barred; however, there is authority to suggest that the nature of settlement proceedings would prevent such a bar. See Airline Stewards and Stewardesses Ass’n v. American Airlines, Inc., supra, 573 F.2d at 963. VI. Attorneys’ Fees. The district court held that “each party is to bear its own attorneys’ fees, as no party is the prevailing party as it must be under 42 U.S.Code 2000(E)(5) [2000e-5], subparagraph K.” The relevant section, also referred to as Title VII, § 706(k) states: (k) In any action or, proceeding under this subchapter- the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. The award of attorneys’ fees is a matter committed to the discretion of the trial judge. See Fountain v. Safeway Stores, Inc., 9 Cir., 1977, 555 F.2d 753; Van Hoomissen v. Xerox Corp., 9 Cir., 1974, 503 F.2d 1131. The Assistant Policewomen have not shown us any abuse of discretion by the trial judge. Affirmed. . The named plaintiffs are fourteen of the fifteen women employed as assistant policewomen by the City at the time the trial judge rendered his decision. The remaining assistant policewoman chose not to take part in the action, and two of the named plaintiffs had decided not to take advantage of the terms of the Agreement at the time the decision was rendered. All fifteen women signed the Agreement. . Why is it that women seeking equal rights object to such words as man, men, mankind, he, him, his, but do not object to female or male? Why should opposition to discrimination against women become a weapon for turning the wonderful language of Shakespeare and Milton into a hideous parody of itself? In the opening brief of the appellant-plaintiffs, we find locomotive firemen called “firefighters,” and railroad brakemen called “brakepersons.” Whatever else locomotive firemen or firewomen" }, { "docid": "7312585", "title": "", "text": "sex constitutes a per se violation of 42 U.S.C. § 2000e-2(c). Having found intentional unlawful employment practices, 42 U.S.C. § 2000e-5(g) vests in the District Court discretionary authority to order, as part of the affirmative action necessary to obviate such unlawful employment practices, that the party responsible pay to the aggrieved person back pay damages calculated to restore such person to’ his or her rightful economic place. “The demand for back pay is not in the nature of a claim for damages, but rather is an integral part of the statutory equitable remedy, to be determined through the exercise of the court’s discretion * * Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125, 2 FEP Cases 231 (5th Cir. 1969). In a case such as the one presented here, where employee initiative and choice are factors in the job assignment process, it seems that, consistent with traditional rules of jurisprudence, the burden of proof is on the claimant to establish her damages. Our review of the record shows that from the evidence submitted the District Court was able to fix with a reasonable degree of accuracy, though not with exactitude, the approximate amount of Mrs. Evans’ damages. We conclude that the District Court did not abuse its discretion in awarding Mrs. Evans $1,100 to be paid jointly by all defendants and $500 to be paid by the Hotel. Ill ATTORNEY’S FEES Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) provides: “In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.” Pursuant to this authority, the District Court concluded that “[i]n addition to the damages specified, plaintiff will be awarded her costs and nominal attorney’s fees of $1,000.” Appendix, p. 6, 5 FEP Cases 396. Mr. Whitworth Stokes, attorney for Mrs. Evans, then filed a motion for reconsideration of the court’s" }, { "docid": "17520888", "title": "", "text": "be devastating for a pension fund * * *. [at 722] [Footnote omitted.] The applicability of Albemarle and Man-hart, and the issue of whether back pay should be awarded herein to any females for Title VII and/or constitutional violations, and/or to any blacks for Title VII violations will be the subject of further consideration and later determination in these cases. Attorney’s Fees In Alyeska Pipeline Service Company v. The Wilderness Society, 421 U.S. 240, 260, 95 S.Ct. 1612, 1623, 44 L.Ed.2d 141 (1975), the Supreme Court held that attorney’s fees are to be awarded only in instances in which the Congress has provided for the same “under selected federal statutes granting or protecting various federal rights.” In these cases, plaintiffs have prevailed in certain important regards pursuant to the provisions of Title VII and of section 1983. Congress has expressly authorized the award of attorney’s fees to prevailing parties in private suits brought under Title VII. 42 U.S.C. § 2000e-5(k) (1974). Section 2000e-5(k) provides: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. Section 1988 of Title 42, as amended by the Civil Rights Attorney’s Fees Awards Act of 1976 (“1976 Act”), also provides, in relevant part: In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public, Law 92-318, or in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. That 1976 amendment applies in cases pending on the effective date of enactment. Wheeler v. The" }, { "docid": "14188345", "title": "", "text": "order that determines substantial rights of the parties may be an appropriate occasion upon which to consider the propriety of an award of counsel fees ...,’” H.R.Rep. No. 94-1558, supra, at 8 (quoting Bradley v. Richmond School Board, supra, [416 U.S.] at 723, n. 28 [94 S.Ct. at 2022, n. 28]). Similarly, the Senate Committee Report explained that the award of counsel fees pendente lite would be “especially appropriate where a party has prevailed on an important matter in the course of litigation, even when he ultimately does not prevail on all issues.” S.Rep. No. 94-1011, supra, at 5 (emphasis added). It seems apparent from these passages that Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims. 446 U.S. at 757-58, 100 S.Ct. at 1989. See also Westfall v. Board of Commissioners of Clayton County, 477 F.Supp. 862 (N.D.Ga. 1979) (awarding interim fees under § 1988). The courts have reached the same result under the attorneys’ fees provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k). That section provides: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs. In Van Hoomissen v. Xerox Corp., 503 F.2d 1131 (9th Cir.1974), the plaintiff brought suit against Xerox claiming that it had fired him in retaliation for his efforts to recruit minorities. The Equal Employment Opportunity Commission (“EEOC”) then sought to intervene both to support plaintiff’s claim and to allege that Xerox engaged in discriminatory hiring practices. The court granted the motion limited to supporting plaintiff’s claim, and the EEOC appealed. After the Ninth Circuit dismissed the appeal, Xerox petitioned the court of appeals for an award of interim attorneys’ fees under § 2000e-5(k) and the court granted the petition. Although the court noted that fees should not be granted every time a party prevails on a procedural motion, it concluded that in that case Xerox’s victory, as a final determination" }, { "docid": "13081416", "title": "", "text": "Bradley v. School Board of City of Richmond, courts “must have discretion to award fees and costs incident to the final disposition of interim matters.” Ms. Grubbs has won a significant procedural victory, simplifying the path that victims of discrimination by Government agencies must follow to vindicate their Title VII rights. If Ms. Grubbs succeeds in proving discrimination, the work for which she now claims fees would then be compensable and the magnitude of the procedural victory would be a factor in determining the extent of that compensation. She must, however, move closer to the end of this litigation before an award is appropriate. Motion denied. . For a more complete statement of the facts, see Grubbs v. Butz, 169 U.S.App.D.C. 82, 514 F.2d 1323 (1975). . Id at 1330. . Pub.L. 88-352, 42 U.S.C. § 2000e-5(k) (1970) provides: In any action or proceeding under this sub-chapter, the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. . Pub.L. 92-261, 42 U.S.C. § 2000e-16(d) (Supp. IV 1974) provides that, “The provisions of section 706(f) through (k), as applicable, shall govern civil actions brought hereunder.” . See, e. g., Rosenfield v. Southern Pacific Co., 519 F.2d 527, 529 (9th Cir. 1975); Barnett v. W. T. Grant Co., 518 F.2d 543 (4th Cir. 1975); Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971); Parham v. Southern Bell, 433 F.2d 421 (8th Cir. 1970). A few courts, without discussion, have allowed interim fee awards under § 706(k), prior to findings of discrimination. See Malone v. North American Rockwell Corp., 457 F.2d 779, 781 (9th Cir. 1972); Green v. McDonnell Douglas Corp., 463 F.2d 337, 344 (8th Cir. 1972), vacated and remanded on other grounds, 411 U. S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). But cf. Young v. ITT, 56 F.R.D. 7 (E.D.Pa.1972) (denying fees for interlocutory appeal under 42 U.S.C. § 1981). In Womack" }, { "docid": "10977974", "title": "", "text": "and the attorney so benefited serves in something of a position of public trust. Consequently, he shares with the court the burden of protecting the class action device against public apprehensions that it encourages strike suits and excessive attorneys’ fees.” Alpine Pharmacy v. Chas. Pfizer & Co., Inc., 481 F.2d 1045, 1050 (2d Cir. 1973). Therefore, aside from the Court’s obligation as class guardian under Rule 23(e), this Court has a mutually-exclusive duty in any class action to examine the basis in fact for the size of the attorney’s fee in order to protect Rule 23 from the taint that it encourages strike suits and the award of excessive fees to counsel. 3. Discretionary Authority to Award Attorneys’ Fees in Title VII Actions The statutory allowance for the payment of attorneys’ fees to the prevailing party in Title VII litigation also provides a basis for judicial inquiry into the “reasonableness” of a proposed attorneys’ fee in a settlement of a Title VII class action. Section 706(k) of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-5(k), provides that: “In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.” Unlike other attorneys’ fees statutes which mandate an allowance of attorneys’ fees to a prevailing plaintiff, the award of attorneys’ fees pursuant to section 706(k) is discretionary, and this discretion lies solely with the Court. Weeks v. Southern Bell Tel. & Tel., 467 F.2d 95, 97 (5th Cir. 1972). “The statute does not prescribe the payment of fees to the lawyers. It allows the award to be made to the prevailing party.” Clark v. American Marine Corp., 320 F.Supp. 709, 711 (E.D.La.1970), aff’d, 437 F.2d 959 (5th Cir. 1971) (emphasis added). a. Definition of “Prevailing Party” to Include a Settling Plaintiff The term “prevailing party” as used in section 706(k) recently has been interpreted to include a party" }, { "docid": "10777594", "title": "", "text": "may properly deduct such contribution from its liability for back pay. In order to effectuate the policies of Title VII, it is necessary in this case to reinstate plaintiff in the position he would have held, with all its emoluments, had he not been fired in violation of Tifie VII. See 42 U.S.C. § 2000e-5(g). V. Attorney's Fees Plaintiff has prayed for an award of attorney’s fees as a part of the costs of this litigation. Title VII provides in part that: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs [of the litigation]. 42 U.S.C. § 2000e-5(k). The Court of Appeals for this circuit, as part of its obligation “to make sure that Title VII works,” has liberally applied the attorney’s fees provision of Title VII, recognizing the importance of private enforcement of civil rights legislation. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 716 (5th Cir. 1974). See also Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972); Long v. Georgia Kraft Co., 455 F.2d 331 (5th Cir. 1972); Lee v. Southern Homes Sites Co., 444 F.2d 143 (5th Cir. 1971). Clearly this is an especially appropriate case for attorney’s fees, since a sizeable corporation obstinately put an individual plaintiff to the expense of full trial upon a very clear case of liability under Title VII. Both plaintiff and defendant shall within 20 days file affidavits from attorneys engaged in regular practice in this district, showing the amount of a reasonable attorney’s fee to be paid plaintiff in this case. The parties should address themselves to the applicability in this ease of the several factors discussed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Judgment will be entered accordingly. . The EEOC, as Amicus Curiae in this case, has provided this Court and all parties with copies of amended regulations which delegate to EEOC district directors the power to is sue suit letters. 29 C.F.R. § 1601.25 (1974). Furthermore, the EEOC on" }, { "docid": "15278892", "title": "", "text": "members of the public, such as those instituted pursuant to 42 U.S.C. § 1983 ...\"). Id. at 267, 269, 579 A.2d 505. . Rule 37(b)(2) reads in relevant part; “if a party ... fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: ... (C) An order ... dismissing the action, or rendering a judgment by default against the disobedient party ... (D) ... an order treating as contempt of court the failure to obey any orders except an order to submit to a physical or mental examination ... in lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order ... to pay the reasonable attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” Fed.R.Civ.P. Rule 37(b)(2)(C), (D). . 42 U.S.C. § 2000e-5(k) provides in relevant part; \"In any action or proceeding under this subchapter the court, in its discretion may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee (including expert fees) as part of the costs 42 U.S.C. § 2000e-5(k). . This action was commenced in the District of Connecticut with Judge Motley sitting by designation. . See, Hensley factors, Infra, n. 26. . In determining whether to adjust the lodestar amount, the Hensley Court held that the district court may consider the 12 factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974) which are; (1) time and labor required; (2) novelty and difficult of the question; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the" }, { "docid": "14794035", "title": "", "text": "of fact which was im properly resolved by the district court on summary judgment. IV. ATTORNEY’S FEES Proctor requested attorney’s fees in the event that she succeeded on this appeal, pursuant to 42 U.S.C. § 2000e-5(k). Section 2000e-5(k) provides: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs---- Proctor argues that an interim fee award is justified on this interlocutory appeal because it is “sufficiently significant and discrete to be treated as a separate unit.” See Smallwood v. National Can Co., 583 F.2d 419, 421 (9th Cir.1978) (fees awarded to prevailing party on appeal from issuance of permanent injunction); Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974) (fees awarded to successful party on appeal from denial of EEOC’s motion to intervene on particular issues). We disagree. A subsequent Supreme Court opinion casts doubt upon the applicability of the rationale employed in Small-wood and Van Hoomissen to a case such as this, where there has been no preliminary finding of liability on any issue. In Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) (per cu-riam), the district court directed verdicts in favor of defendants and denied several of plaintiffs’ motions. The Court of Appeals reversed the directed verdicts, and remanded the case to the district court for a new trial. Id. at 755, 100 S.Ct. at 1988. The Court of Appeals also awarded plaintiffs interim attorneys’ fees for their efforts on appeal pursuant to 42 U.S.C. § 1988. Id. The Supreme Court reversed the fee award because plaintiffs had not prevailed on the merits of any of their claims and had established only that they were entitled to a trial. Id. at 758-59, 100 S.Ct. at 1989-90. The Court noted that the Congressional Committee Reports to section 1988 made reference to two cases which presented appropriate circumstances for an interim fee award. Id. at 757, 100 S.Ct. at 1989. In both cases the party to whom fees" } ]

[ { "docid": "21469873", "title": "", "text": "MANION, Circuit Judge. In 1984, Beverly Silberstein, through her attorney, Robert Kligman, filed a “palimony” action in California state court against her former live-in lover, Robert Silberstein. See generally Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976). Robert removed the ease to federal district court in California. The district judge in California, upon Robert’s motion, transferred the case to the Central District of Illinois. While the case was in the Central District of Illinois, Robert and Beverly (who by that time was represented by new counsel) settled. Robert and Beverly stipulated that the case be dismissed, and the district judge dismissed the palimony action with prejudice. The stipulation and order, however, specifically reserved Robert’s right to proceed against Kligman for sanctions. Wasting no time, Robert moved for Fed.R. Civ.P. 11 sanctions against Kligman the same day the district judge dismissed the palimony action with prejudice. The sanctions motion somehow ended up before a magistrate. We say “somehow ended up” because the record does not reveal how or under what authority the district court referred the sanctions motion to the magistrate. The magistrate denied Robert’s sanctions motion. The district judge never reviewed the magistrate’s decision or entered a final order. We do not have jurisdiction over this appeal. 28 U.S.C. § 1291 grants the courts of appeals jurisdiction over the district courts’ final judgments. A magistrate has no power to enter a final appeal-able judgment unless the district court properly refers the case to the magistrate and the parties consent to the magistrate’s entering final judgment. 28 U.S.C. § 636(c)(1); Geaney v. Carlson, 776 F.2d 140, 142 (7th Cir.1985). The record contains no indication that the parties affirmatively consented to having the magistrate enter final judgment on Robert’s Rule 11 motion. The parties did not consent either orally or in writing before the sanctions hearing, see Lovelace v. Dall, 820 F.2d 223, 225-26 (7th Cir.1987) (per curiam), nor did they even stipulate after judgment that they had previously consented to the magistrate’s entering judgment, see King v. Ionization International, Inc., 825 F.2d 1180, 1185 (7th Cir.1987)." } ]

[ { "docid": "23391236", "title": "", "text": "with evidence of a genuine factual dispute. Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300, 1302 (7th Cir.1991). Conclusory allegations by the party opposing the motion cannot defeat the motion. Hedberg, 47 F.3d at 931; First Commodity Traders v. Heinold Commodities, 766 F.2d 1007, 1011 (7th Cir.1985). A. Appellate Jurisdiction United States magistrate judges have overseen this case from its very early stages. For a magistrate judge to have the power to enter a final judgment, each party to litigation must explicitly consent. 28 U.S.C. § 636(c); Mark I, Inc. v. Gruber, 38 F.3d 369, 370 (7th Cir.1994). If the parties do not so consent, the magistrate judge’s decision is a recommendation reviewable by the district court only, and the Court of Appeals lacks jurisdiction over an appeal. Jaliwala v. United States, 945 F.2d 221, 223 (7th Cir.1991). The original parties to this litigation jumped through the required hoops. On May 5, 1988, all defendants named at the time executed a written consent. On May 17, 1988, Smith executed a consent. However, Smith added eight more defendants in his Third Amended Complaint, filed April 6, 1990. Those defendants did not consent at the time, though they were represented by the same attorneys from the State of Illinois. Nonetheless, the case proceeded. After oral argument, Smith brought the eight defendants’ lack of consent to this Court’s attention. We ordered a response from the defendants, who offered to cure the problem by submitting a belated consent through their attorneys (except for the one defendant who had died in the meantime— shades of Bleak House). We must decide what effect, if any, this tangle of consents has on our appellate jurisdiction. If the seven additional defendants had not submitted a belated consent, that would be the end of it. See Jaliwala, 945 F.2d at 224 (dismissing appeal because intervening defendant never consented to magistrate judge’s entry of final judgment). However, in King v. Ionization Int’l, 825 F.2d 1180, 1185 (7th Cir.1987), we held that the parties could show that they had consented by submitting a stipulation well after the magistrate judge’s entry" }, { "docid": "5724671", "title": "", "text": "MEMORANDUM OPINION AND ORDER ALESIA, District Judge. Before the court is claimant Neat, Incorporated’s “motion to return the case from the magistrate judge to this court due to noncompliance with 28 U.S.C. § 636(c) and Local Rule 1.72(B).” For the reasons that follow, the court denies claimant’s motion. I. BACKGROUND Plaintiff Lakeside Feeders, Limited (“Lakeside”) filed suit against defendant Chicago Meat Processors, Incorporated (“CMP”) on a breach-of-contract claim. Both Lakeside and CMP expressly consented pursuant to 28 U.S.C. § 636(c) to have their case tried by Magistrate Judge Guzman. On May 13, 1997, Magistrate Judge Guzman entered a judgment in the amount of $86,617 in favor of Lakeside and against CMP. On July 1, 1997, the Clerk of the Court (“the clerk”) issued citations to discover assets. These citations were directed at two companies, Grecian Delight Foods, Incorporated (“Grecian”) and Quantum Foods, Incorporated (“Quantum”), which Lakeside believed were indebted to CMP. Shortly, thereafter, Lakeside moved for a turnover order directing Grecian and Quantum to pay Lakeside the money owed to CMP. Lakeside gave notice of this motion to both CMP and Neat, Incorporated (“Neat”). On July 29, 1997, the court entered an order directing Neat to file any claim it may have to the sums owed by Grecian and Quantum. At that time, according to Neat, the clerk did not mail the consent forms to Neat pursuant to Local General Rule 1.72(B). Before Neat’s attorney responded to the order, Neat contends that Gus Tountas of Neat asked if the post-judgment proceeding could be heard by another judge. Neat’s former attorney stated that it was not possible to have another judge hear the post-judgment proceeding because Magistrate Judge Guzman heard the underlying case. On August 21, 1997, Neat filed an answer to Lakeside’s motion for turnover, in which Neat asserted that Grecian and Quantum ordered meat products from Neat and not from CMP and, thus, owed Neat and not CMP the money. On February 3, 1998, the court entered an agreed order which directed the clerk to disperse the funds by paying $80,600 to Lakeside and the balance to Neat. Discovery" }, { "docid": "11083825", "title": "", "text": "“alter ego” doctrine independent of veil-piercing theories, see NLRB v. International Measurement and Control Co., 978 F.2d 334 (7th Cir.1992); Esmark, Inc. v. NLRB, 887 F.2d 739 (7th Cir.1989), Mark I has not supplied adequate grounds for invoking it here. Throughout this litigation, Mark I has recognized that R.G. and Gruber are separate. It would have been simple for Mark I to remind the magistrate judge of the need to inquire whether Gruber would consent under § 636(c) — or to ask the magistrate judge to find that R.G.’s consent binds Gruber. That was not done, so there is no basis for finding the essential express consent, see New York Chinese TV Programs, 996 F.2d at 24-25. Unless remarks made by Gruber’s counsel at oral argument are themselves the necessary consent. Inquiries from the bench about this subject took counsel by surprise. The lawyer representing Gruber blurted out: I am testing my sieve-like memory on pieces of paper, but my recollection is yes, ... it was the intention of Gruber to consent to the proceeding_ Mr. Gruber had some involvement with the case and the initial decision in the consent at the corporate level. Even assuming that the lawyer’s “sieve-like memory” responded correctly to prodding, we do not believe that these answers show the essential explicit consent by Gruber. Consenting on behalf of a corporation is one thing; consenting on behalf of yourself is quite another. Managers need not pay corporate debts, and exposure to personal liability concentrates the mind. What Gruber’s “intention” might have been cannot be dis-positive — for unless we overrule the cases holding that express assent on the record is essential, one’s thoughts do not satisfy § 636(c). Consent to trial and final decision by a magistrate waives several constitutional rights. Waivers should be explicit and on the record. Spur-of-the-moment recollections by counsel do not satisfy this standard. We need not decide whether a representation of counsel (as opposed to the litigant personally) could suffice under § 636(c), because the lack of time to reflect before making this representation renders it ineffectual as a waiver of" }, { "docid": "5724677", "title": "", "text": "the proposition that a client is bound by the actions of his attorney. See Dunphy v. McKee, 134 F.3d 1297,1300 (7th Cir.1998); United States v. Byerley, 46 F.3d 694, 700 (7th Cir.1995); Johnson v. Gudmundsson, 35 F.3d 1104, 1117 (7th Cir.1994). Thus, the attorney’s signature on the final pretrial order binds Neat. CONCLUSION For the foregoing reasons, the court denies claimant Neat’s “motion to return the case from the magistrate judge to this court due to non-compliance with 28 U.S.C. § 636(c) and Local General Rule 1.72(B).” . The trial date has been vacated pending this court’s decision on this motion. . Neat calls the previous attorney’s acquiescence \"uninformed” because the attorney was unaware of the applicability of 28 U.S.C. § 636(c) to the post-judgment hearing. . Although, a representative of Neat did not sign the final pretrial order, Neat is bound by the consequences of its attorney’s signature. Neat, the client, is the principal and the attorney is the agent. Under agency law, Neat is bound by the actions of its attorney. See Dunphy v. McKee, 134 F.3d 1297, 1300 (7th Cir.1998); United States v. Byerley, 46 F.3d 694, 700 (7th Cir.1995)." }, { "docid": "11083821", "title": "", "text": "litigants have opted for decision by a magistrate judge. For then the newly arrived party may assume that the original choice is conclusive; or everyone may overlook the problem. But the original choice is not dispositive. Unless the latecomer, too, consents, the whole proceeding before the magistrate judge may be set at naught. Jaliwala v. United States, 945 F.2d 221 (7th Cir.1991); see also Atlantic Mutual Insurance Co. v. Northwest Airlines, Inc., 24 F.3d 958 (7th Cir.1994). Aware of this booby trap, district courts have promulgated rules addressing the problem. For example, Local Rule 1.72(B) of the Northern District of Illinois provides that “[wjhenever a party is added to a case the district judge or magistrate judge to whom the case is assigned will direct the clerk to mail to the additional party a notice of the availability of a magistrate judge to exercise jurisdiction.... Where the consent is not filed within [the time fixed], the magistrate judge will promptly send the case to the Executive Committee for reassignment to the calendar of the district judge to whom the case was previously assigned.” This suit, originally between Mark I, Inc., and R.G. International Corp., was assigned to a magistrate judge after both parties signed consent forms in May 1990. Magistrate judge Lefkow granted summary judgment to Mark I, holding that R.G.’s retention of sheets of decorative stickers, after the revocation of their consignment for sale, was conversion. 1991 WL 181061, 1991 U.S.Dist. Lexis 12546 (N.D.I1L). The case was set for trial to determine damages and transferred to magistrate judge Pallmeyer. Before trial began, R.G. went out of business. In April 1992 Mark I filed an amended complaint adding Cyril Gruber and Ernest Robertson as defendants. Gruber and Robertson owned 50% apiece of R.G.’s stock, and Gru-ber made the decision to retain the stickers. The magistrate judge did not initiate the inquiry for which the local rule called, and no one else paid any attention to § 636(c). Robertson followed R.G. into bankruptcy and disappeared from this case. Gruber did not complain about the magistrate judge’s role, but neither did he" }, { "docid": "2609377", "title": "", "text": "from the judgment. A differentmag-istrate judge, Magistrate Judge Gorence, denied Kalan’s motion. The record contains no consent naming Magistrate Judge Gorence and no order by the district court referring the case to her. Neither party questioned our jurisdiction on appeal, but of course we have an independent duty to determine whether jurisdiction exists in every case. See United States v. Tittjung, 235 F.3d 330, 335 (7th Cir.2000), cert. denied, _ U.S. _, 121 S.Ct. 2554, 150 L.Ed.2d 721 (2001). So we appointed amicus counsel and requested that he brief the question whether Magistrate Judge Gorence, or any other magistrate judge, had jurisdiction to enter a final order denying Kalan’s motion when the parties’ consent identified Magistrate Judge Bittner by name. We gave the parties an opportunity to respond to amicus counsel’s brief, and the City filed a response. 28 U.S.C. § 1291 grants the courts of appeals jurisdiction over final decisions of the district courts. 28 U.S.C. § 636(c)(1) provides that “[u]pon consent of the parties, a full-time United States magistrate ... may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or the courts he serves.” Thus, a magistrate judge has jurisdiction to enter a final decision only if the district court properly refers the case and the parties consent. See Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1014 n. 7 (7th Cir.), cert. denied, 531 U.S. 1012, 121 S.Ct. 567, 148 L.Ed.2d 486 (2000). Consent need not be in writing, but it must be on the record, explicit, and unambiguous. See Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 883 (7th Cir.1998); Mark I, Inc. v. Gruber, 38 F.3d 369, 370 (7th Cir.1994). We cannot infer consent from the conduct of the parties. Gruber, 38 F.3d at 370. Further, we have emphasized repeatedly that valid consent is essential to upholding § 636(c)’s constitutionality against arguments that it improperly vests the judicial power of the United States in non-Article III judges. Id. (collecting" }, { "docid": "5724676", "title": "", "text": "consent to the magistrate judge’s jurisdiction pursuant to 28 U.S.C. § 636(c). This consent is not passive. It is on the record, clear and unambiguous. Thus, the court finds the signing of the final pretrial order satisfies 28 U.S.C. § 636(c). See King, 825 F.2d at 1185 (finding the joint stipulation a clear statement of consent by the parties); Chicago Tile Institute Welfare Trust v. Ability Floors, Inc., No. 90 C 0250, 1992 WL 44999, at *1 (N.D.Ill. Feb.28, 1992) (finding consent when the parties signed a final pretrial order containing a provision on consent to the magistrate). Neat also argues that it would not have agreed to the magistrate’s jurisdiction if it would have known that the case could be heard by the district court. Therefore, Neat claims that there was no “knowing and voluntary waiver of Neat’s right to an Article III judge.” Neat, however, has failed to cite any case law stating that an attorney’s actions do not bind a client. In contrast, the court has found several cases which stand for the proposition that a client is bound by the actions of his attorney. See Dunphy v. McKee, 134 F.3d 1297,1300 (7th Cir.1998); United States v. Byerley, 46 F.3d 694, 700 (7th Cir.1995); Johnson v. Gudmundsson, 35 F.3d 1104, 1117 (7th Cir.1994). Thus, the attorney’s signature on the final pretrial order binds Neat. CONCLUSION For the foregoing reasons, the court denies claimant Neat’s “motion to return the case from the magistrate judge to this court due to non-compliance with 28 U.S.C. § 636(c) and Local General Rule 1.72(B).” . The trial date has been vacated pending this court’s decision on this motion. . Neat calls the previous attorney’s acquiescence \"uninformed” because the attorney was unaware of the applicability of 28 U.S.C. § 636(c) to the post-judgment hearing. . Although, a representative of Neat did not sign the final pretrial order, Neat is bound by the consequences of its attorney’s signature. Neat, the client, is the principal and the attorney is the agent. Under agency law, Neat is bound by the actions of its attorney. See Dunphy" }, { "docid": "23348339", "title": "", "text": "73 which dealt with notice of appeal when defect occurred in second notice of appeal and the defect did not mislead or prejudice the parties). . This circuit has taken a strict view of the prerequisites for trial before a magistrate judge because the parties are giving up their constitutional right to trial before an Article III judge with life tenure and salary protection. See Williams v. General Elec. Capital Auto Lease, Inc., 159 F.3d 266, 268 (7th Cir. 1998), cert. denied, - U.S. -, 119 S.Ct. 2392, 144 L.Ed.2d 793 (1999). 28 U.S.C. § 636, which authorizes suit before a magistrate judge, requires (1) consent of the parties and (2) special designation by the district court. The statute states in pertinent part; (1) Upon the consent of the parties, a full-time United States magistrate or a part-time United States magistrate who serves as a full-time judicial officer may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or courts he serves. 28 U.S.C. § 636(c). Although the required consent does not need to be in writing, it must be explicit and on the record. See Mark I, Inc. v. Gruber, 38 F.3d 369, 370 (7th Cir.1994). Also, the consent must be unanimous. See Williams, 159 F.3d at 268; Brook, Weiner, Sered, Kreger & Weinberg v. Coreq, Inc., 53 F.3d 851, 851-52 (7th Cir.1995); Mark I, Inc., 38 F.3d at 370. In applying the above authority, if Gainey was still a party to the action and did not consent to trial before the magistrate judge, then the magistrate judge would not have had jurisdiction to enter a final judgment. If the magistrate judge did not have jurisdiction then this court would not have jurisdiction under § 1291 because no final judgment would have been entered. Because the record does not contain evidence of Gainey’s consent, the question would remain whether Gai-ney was still a party in the litigation. . Rule 21 reads as follows: Misjoinder of parties" }, { "docid": "11083822", "title": "", "text": "judge to whom the case was previously assigned.” This suit, originally between Mark I, Inc., and R.G. International Corp., was assigned to a magistrate judge after both parties signed consent forms in May 1990. Magistrate judge Lefkow granted summary judgment to Mark I, holding that R.G.’s retention of sheets of decorative stickers, after the revocation of their consignment for sale, was conversion. 1991 WL 181061, 1991 U.S.Dist. Lexis 12546 (N.D.I1L). The case was set for trial to determine damages and transferred to magistrate judge Pallmeyer. Before trial began, R.G. went out of business. In April 1992 Mark I filed an amended complaint adding Cyril Gruber and Ernest Robertson as defendants. Gruber and Robertson owned 50% apiece of R.G.’s stock, and Gru-ber made the decision to retain the stickers. The magistrate judge did not initiate the inquiry for which the local rule called, and no one else paid any attention to § 636(c). Robertson followed R.G. into bankruptcy and disappeared from this case. Gruber did not complain about the magistrate judge’s role, but neither did he expressly consent to it. A trial was held in May 1993, and in December 1993 the magistrate judge awarded more than $500,000 against Gruber. 1993 U.S.Dist. Lexis 17631. At our request, the parties filed supplemental briefs addressing the consequences of the lack of Gruber’s formal authorization. Offered a belated opportunity to make his wishes known, Gruber has declined to consent. The case therefore must be remanded for decision by a district judge unless some earlier act establishes Gruber’s waiver of the safeguards provided in Article III. R.G.’s consent cannot be attributed directly to Gruber; he and the corporation have been represented by different law firms and have managed their interests in the litigation independently. As a rule, a corporate officer’s acts are imputed to the corporation, rather than the other way ’round. Only when the firm so neglects the corporate forms that it is nothing but a name for a proprietorship or partnership of its managers is it possible to impute corporate acts (and debts) to managers and investors. What is more, neglect of forms" }, { "docid": "18025527", "title": "", "text": "of judicial independence in Article III of the Constitution. See Mark I, Inc. v. Gruber, 38 F.3d 369, 370 (7th Cir.1994). We have held that consent need not be in writing, but it must be on the record, clear, and unambiguous. Kalan v. City of St. Francis, 274 F.3d 1150, 1152 (7th Cir.2001) (parties’ consent to one named magistrate judge did not extend to a different, later-assigned magistrate judge). The Supreme Court has held that consent can also be implied from conduct of parties during the proceedings, at least where the parties have notice of their right to refuse. Roell v. Withrow, 538 U.S. 580, 590, 123 S.Ct. 1696, 155 L.Ed.2d 775 (2003) (“We think the better rule is to accept implied consent where, as here, the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge.”). The parties litigated this case before two magistrate judges. No party raised the issue of a possible defect in consent until Stevo objected in his reply brief on appeal, citing Kalan. Arguments raised for the first time so late in the proceedings are waived, unless of course they question appellate or subject matter jurisdiction. If the parties have not given valid consent to entry of judgment by a magistrate judge, we treat the purported judgment as not final so that we lack appellate jurisdiction. In Kalan, we held that lack of consent to a magistrate judge is “a jurisdictional defect that the parties cannot waive.” 274 F.3d at 1153. Following Kalan, if we were to find a lack of consent here, we would be without jurisdiction to hear this appeal and would be required to vacate and remand for additional proceedings in the district court. Because we find unambiguous consent here, both in writing and implied from the conduct of the parties, we have jurisdiction to hear this appeal. (In Roell, the Supreme Court expressly declined to decide whether the court of appeals was correct in treating lack of consent as a jurisdictional defect." }, { "docid": "5724675", "title": "", "text": "King v. Ionization Int’l, Inc., 825 F.2d 1180, 1185 (7th Cir.1987). However, the Seventh Circuit refuses to infer consent from the parties’ behavior. Id. The consent must be “clear and unambiguous.” Jaliwala v. United States, 945 F.2d 221, 224 (7th Cir.1991). Although, unlike some other courts, the Seventh Circuit does not insist on written consent, the consent “must be on the record and unequivocal.” Mark I, Inc. v. Gruber, 38 F.3d 369, 370 (7th Cir.1994). Neat first argues that its previous attorney was unaware that Neat could withhold consent to the magistrate’s jurisdiction. Ignorance of the law does not excuse an attorney’s actions. See Tuke v. United States, 76 F.3d 155, 156 (7th Cir.1996). Furthermore, the court believes that the attorney should have been aware of the option before he signed the final pretrial order; a suspicion of the option should have arisen in the attorney when he read the express con sent provision in the final pretrial order. Neat’s attorney, however, proceeded to sign the final pretrial order which expressly states that the parties consent to the magistrate judge’s jurisdiction pursuant to 28 U.S.C. § 636(c). This consent is not passive. It is on the record, clear and unambiguous. Thus, the court finds the signing of the final pretrial order satisfies 28 U.S.C. § 636(c). See King, 825 F.2d at 1185 (finding the joint stipulation a clear statement of consent by the parties); Chicago Tile Institute Welfare Trust v. Ability Floors, Inc., No. 90 C 0250, 1992 WL 44999, at *1 (N.D.Ill. Feb.28, 1992) (finding consent when the parties signed a final pretrial order containing a provision on consent to the magistrate). Neat also argues that it would not have agreed to the magistrate’s jurisdiction if it would have known that the case could be heard by the district court. Therefore, Neat claims that there was no “knowing and voluntary waiver of Neat’s right to an Article III judge.” Neat, however, has failed to cite any case law stating that an attorney’s actions do not bind a client. In contrast, the court has found several cases which stand for" }, { "docid": "11083826", "title": "", "text": "Mr. Gruber had some involvement with the case and the initial decision in the consent at the corporate level. Even assuming that the lawyer’s “sieve-like memory” responded correctly to prodding, we do not believe that these answers show the essential explicit consent by Gruber. Consenting on behalf of a corporation is one thing; consenting on behalf of yourself is quite another. Managers need not pay corporate debts, and exposure to personal liability concentrates the mind. What Gruber’s “intention” might have been cannot be dis-positive — for unless we overrule the cases holding that express assent on the record is essential, one’s thoughts do not satisfy § 636(c). Consent to trial and final decision by a magistrate waives several constitutional rights. Waivers should be explicit and on the record. Spur-of-the-moment recollections by counsel do not satisfy this standard. We need not decide whether a representation of counsel (as opposed to the litigant personally) could suffice under § 636(c), because the lack of time to reflect before making this representation renders it ineffectual as a waiver of constitutional guarantees. Compare United States v. Teague, 953 F.2d 1525 (11th Cir.1992) (en bane), with United States v. Martinez, 883 F.2d 750 (9th Cir.1989), vacated on other grounds, 928 F.2d 1470 (1991). The magistrate judge consequently lacked authority to enter a final decision. The judgment is vacated, and the case is remanded for decision by a judge appointed under Article III of the Constitution. WELLFORD, Circuit Judge, concurring: This circuit has a very strict rule with respect to required consent of a party before a magistrate judge may enter a valid final judgment as to that party’s interests. In Jaliwala v. United States, 945 F.2d 221 (7th Cir.1991), this court went so far as to dismiss an appeal in a judgment exceeding $160,000,-000 because an intervenor party had not consented orally or in writing to trial by the magistrate judge. As in this case, “both attorneys were surprised by the disclosure of the defect” during questioning at oral argument. Id. at 223. Appellee argued, as does Mark I, Inc. here, that consent should be implied," }, { "docid": "18025526", "title": "", "text": "allowed Stevo to amend his complaint to include equal protection claims. Rather than respond to defendants’ arguments and stated facts, counsel for Stevo opposed the summary judgment motion by objecting to violations of Northern District of Illinois Local Rule 56.1 by defendants. He argued that defendants had included their legal arguments in the motion itself rather than in a separate memorandum and had failed to number the paragraphs in their statement of facts. Magistrate Judge Finnegan exercised her discretion not to prolong the lawsuit and decided not to enforce strictly the district court’s local rule. She denied Stevo’s objections. She also gave him more time to submit a substantive response to the summary judgment motion. Stevo did not do so, however, and the judge then granted summary judgment for defendants. II. Jurisdiction of the Magistrate Judge A district judge may assign a magistrate judge to hear a civil case and render final judgment, provided that all parties consent voluntarily. 28 U.S.C. § 636(c). Consent is required because magistrates are not protected by the full guarantees of judicial independence in Article III of the Constitution. See Mark I, Inc. v. Gruber, 38 F.3d 369, 370 (7th Cir.1994). We have held that consent need not be in writing, but it must be on the record, clear, and unambiguous. Kalan v. City of St. Francis, 274 F.3d 1150, 1152 (7th Cir.2001) (parties’ consent to one named magistrate judge did not extend to a different, later-assigned magistrate judge). The Supreme Court has held that consent can also be implied from conduct of parties during the proceedings, at least where the parties have notice of their right to refuse. Roell v. Withrow, 538 U.S. 580, 590, 123 S.Ct. 1696, 155 L.Ed.2d 775 (2003) (“We think the better rule is to accept implied consent where, as here, the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge.”). The parties litigated this case before two magistrate judges. No party raised the issue of a possible defect in" }, { "docid": "11083824", "title": "", "text": "is a necessary but not sufficient condition for “piercing the corporate veil.” Under most states’ law, it is also necessary to show that the managers or investors used the corporate form to perpetrate an injustice. See Sea-Land Services, Inc. v. Pepper Source, 941 F.2d 519 (7th Cir.1991) (Illinois law). R.G. International was incorporated in Connecticut. Mark I has not argued that Connecticut law freely permits the attribution of corporate acts to managers and investors; indeed, it has not cited any state case on this subject. Our own investigation did not turn up any unusual rules in Connecticut law. See SFA Folio Collections, Inc. v. Bannon, 217 Conn. 220, 585 A.2d 666 (1991); Season-All Industries, Inc. v. R.J. Grosso, Inc., 213 Conn. 486, 569 A.2d 32 (1990). The record does not permit a decision about the extent to which R.G. International observed corporate forms; at all events, Mark I does not contend that Gruber used the corporate form to commit a fraud or otherwise perpetrate an injustice in this suit. To the extent there is an “alter ego” doctrine independent of veil-piercing theories, see NLRB v. International Measurement and Control Co., 978 F.2d 334 (7th Cir.1992); Esmark, Inc. v. NLRB, 887 F.2d 739 (7th Cir.1989), Mark I has not supplied adequate grounds for invoking it here. Throughout this litigation, Mark I has recognized that R.G. and Gruber are separate. It would have been simple for Mark I to remind the magistrate judge of the need to inquire whether Gruber would consent under § 636(c) — or to ask the magistrate judge to find that R.G.’s consent binds Gruber. That was not done, so there is no basis for finding the essential express consent, see New York Chinese TV Programs, 996 F.2d at 24-25. Unless remarks made by Gruber’s counsel at oral argument are themselves the necessary consent. Inquiries from the bench about this subject took counsel by surprise. The lawyer representing Gruber blurted out: I am testing my sieve-like memory on pieces of paper, but my recollection is yes, ... it was the intention of Gruber to consent to the proceeding_" }, { "docid": "5724673", "title": "", "text": "between Lakeside and Neat proceeded. On March 2, 1998, Lakeside and Neat filed a final pretrial order with Magistrate Judge Guzman. This order includes the following explicit statement, which Neat terms as boilerplate: “Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to a magistrate judge who may conduct any or all proceedings in a jury or non jury civil matter and order the entry of judgment in this case.” (D.’s Resp. at 3). Sometime after the filing of the final pretrial order, Marc Weinstein withdrew as attorney for Neat. The law firm of Cole & Staes then appeared as counsel for Neat and proceeded to file three substantive motions before Magistrate Judge Guzman. All three of these motions were denied and the case was set for trial before Magistrate Judge Guzman. The trial was to commence December 16,1998. According to Neat, its new attorney did not realize until sometime during the beginning of November of 1998 that Neat never received notification of the availability of the magistrate pursuant to Local General Rule 1.72. In response to this discovery, Neat filed this motion with the district court asking the court to transfer the proceedings back to the district court because it claims that it never consented to the magistrate’s jurisdiction. II. DISCUSSION Neat argues that this court should return the ease from Magistrate Judge Guzman to the district court because it never consented to the magistrate’s jurisdiction as required by 28 U.S.C. § 636(c). Neat contends that its previous attorney’s uninformed acquiescence is similar to passive acquiescence and thus does not satisfy the consent required by 28 U.S.C. § 636(c). Pursuant to 28 U.S.C. § 636(c), a United States magistrate “may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case when specially designated to exercise such jurisdiction by the district court” and when all parties have consented. 28 U.S.C. § 636(c). “The statute does not require a specific form or time of consent or even that [the consent] be in writing.”" }, { "docid": "2609378", "title": "", "text": "or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or the courts he serves.” Thus, a magistrate judge has jurisdiction to enter a final decision only if the district court properly refers the case and the parties consent. See Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1014 n. 7 (7th Cir.), cert. denied, 531 U.S. 1012, 121 S.Ct. 567, 148 L.Ed.2d 486 (2000). Consent need not be in writing, but it must be on the record, explicit, and unambiguous. See Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 883 (7th Cir.1998); Mark I, Inc. v. Gruber, 38 F.3d 369, 370 (7th Cir.1994). We cannot infer consent from the conduct of the parties. Gruber, 38 F.3d at 370. Further, we have emphasized repeatedly that valid consent is essential to upholding § 636(c)’s constitutionality against arguments that it improperly vests the judicial power of the United States in non-Article III judges. Id. (collecting cases); see also Jaliwala v. United States, 945 F.2d 221, 224 (7th Cir.1991) (“[T]he standards regarding the validity of consent must be carefully observed, for as we have previously noted valid consent is the linchpin of the constitutionality of 28 U.S.C. § 636(c).”) (citation and internal quotation omitted). The question we face here is whether a consent that specifies a particular magistrate judge by name (Magistrate Judge Bittner) constitutes consent to a different magistrate judge (Magistrate Judge Gorence). Although we have not addressed this issue before, the Fifth Circuit has, and that decision is instructive here. In Mendes Junior Int’l Co. v. M/V Sokai Maru, 978 F.2d 920 (5th Cir.1992), the consent and order of reference identified Magistrate Judge Brown by name. Id. at 921. Before Magistrate Judge Brown could enter judgment, she became a bankruptcy judge, and the case was transferred to Magistrate Judge Stacy. Id. at 922. The Fifth Circuit held that Magistrate Judge Stacy lacked authority to enter judgment because the consent and order of reference were expressly for (and therefore limited" }, { "docid": "11083827", "title": "", "text": "constitutional guarantees. Compare United States v. Teague, 953 F.2d 1525 (11th Cir.1992) (en bane), with United States v. Martinez, 883 F.2d 750 (9th Cir.1989), vacated on other grounds, 928 F.2d 1470 (1991). The magistrate judge consequently lacked authority to enter a final decision. The judgment is vacated, and the case is remanded for decision by a judge appointed under Article III of the Constitution. WELLFORD, Circuit Judge, concurring: This circuit has a very strict rule with respect to required consent of a party before a magistrate judge may enter a valid final judgment as to that party’s interests. In Jaliwala v. United States, 945 F.2d 221 (7th Cir.1991), this court went so far as to dismiss an appeal in a judgment exceeding $160,000,-000 because an intervenor party had not consented orally or in writing to trial by the magistrate judge. As in this case, “both attorneys were surprised by the disclosure of the defect” during questioning at oral argument. Id. at 223. Appellee argued, as does Mark I, Inc. here, that consent should be implied, but this court held that “conditional or implied consent is inconsistent with what this court requires to evince a party’s consent.” Id. at 224. While I feel that defendant Gruber received a windfall in this result, I must concur in the judgment to remand for the reasons indicated by Judge Easterbrook." }, { "docid": "5724674", "title": "", "text": "pursuant to Local General Rule 1.72. In response to this discovery, Neat filed this motion with the district court asking the court to transfer the proceedings back to the district court because it claims that it never consented to the magistrate’s jurisdiction. II. DISCUSSION Neat argues that this court should return the ease from Magistrate Judge Guzman to the district court because it never consented to the magistrate’s jurisdiction as required by 28 U.S.C. § 636(c). Neat contends that its previous attorney’s uninformed acquiescence is similar to passive acquiescence and thus does not satisfy the consent required by 28 U.S.C. § 636(c). Pursuant to 28 U.S.C. § 636(c), a United States magistrate “may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case when specially designated to exercise such jurisdiction by the district court” and when all parties have consented. 28 U.S.C. § 636(c). “The statute does not require a specific form or time of consent or even that [the consent] be in writing.” King v. Ionization Int’l, Inc., 825 F.2d 1180, 1185 (7th Cir.1987). However, the Seventh Circuit refuses to infer consent from the parties’ behavior. Id. The consent must be “clear and unambiguous.” Jaliwala v. United States, 945 F.2d 221, 224 (7th Cir.1991). Although, unlike some other courts, the Seventh Circuit does not insist on written consent, the consent “must be on the record and unequivocal.” Mark I, Inc. v. Gruber, 38 F.3d 369, 370 (7th Cir.1994). Neat first argues that its previous attorney was unaware that Neat could withhold consent to the magistrate’s jurisdiction. Ignorance of the law does not excuse an attorney’s actions. See Tuke v. United States, 76 F.3d 155, 156 (7th Cir.1996). Furthermore, the court believes that the attorney should have been aware of the option before he signed the final pretrial order; a suspicion of the option should have arisen in the attorney when he read the express con sent provision in the final pretrial order. Neat’s attorney, however, proceeded to sign the final pretrial order which expressly states that the parties" }, { "docid": "23348340", "title": "", "text": "such jurisdiction by the district court or courts he serves. 28 U.S.C. § 636(c). Although the required consent does not need to be in writing, it must be explicit and on the record. See Mark I, Inc. v. Gruber, 38 F.3d 369, 370 (7th Cir.1994). Also, the consent must be unanimous. See Williams, 159 F.3d at 268; Brook, Weiner, Sered, Kreger & Weinberg v. Coreq, Inc., 53 F.3d 851, 851-52 (7th Cir.1995); Mark I, Inc., 38 F.3d at 370. In applying the above authority, if Gainey was still a party to the action and did not consent to trial before the magistrate judge, then the magistrate judge would not have had jurisdiction to enter a final judgment. If the magistrate judge did not have jurisdiction then this court would not have jurisdiction under § 1291 because no final judgment would have been entered. Because the record does not contain evidence of Gainey’s consent, the question would remain whether Gai-ney was still a party in the litigation. . Rule 21 reads as follows: Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately. Fed.R.Civ.P. 21. If the district court severed Gainey under Rule 21, then it created two separate actions, each capable of reaching final judgment and being appealed. If, however, Gainey was not severed or the district court merely bifurcated the parties under Rule 42, Fed. R. Civ. P., then no final judgment could be entered until final judgment was reached on all issues and parties. Rule 42 states: (b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues," }, { "docid": "5724672", "title": "", "text": "this motion to both CMP and Neat, Incorporated (“Neat”). On July 29, 1997, the court entered an order directing Neat to file any claim it may have to the sums owed by Grecian and Quantum. At that time, according to Neat, the clerk did not mail the consent forms to Neat pursuant to Local General Rule 1.72(B). Before Neat’s attorney responded to the order, Neat contends that Gus Tountas of Neat asked if the post-judgment proceeding could be heard by another judge. Neat’s former attorney stated that it was not possible to have another judge hear the post-judgment proceeding because Magistrate Judge Guzman heard the underlying case. On August 21, 1997, Neat filed an answer to Lakeside’s motion for turnover, in which Neat asserted that Grecian and Quantum ordered meat products from Neat and not from CMP and, thus, owed Neat and not CMP the money. On February 3, 1998, the court entered an agreed order which directed the clerk to disperse the funds by paying $80,600 to Lakeside and the balance to Neat. Discovery between Lakeside and Neat proceeded. On March 2, 1998, Lakeside and Neat filed a final pretrial order with Magistrate Judge Guzman. This order includes the following explicit statement, which Neat terms as boilerplate: “Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to a magistrate judge who may conduct any or all proceedings in a jury or non jury civil matter and order the entry of judgment in this case.” (D.’s Resp. at 3). Sometime after the filing of the final pretrial order, Marc Weinstein withdrew as attorney for Neat. The law firm of Cole & Staes then appeared as counsel for Neat and proceeded to file three substantive motions before Magistrate Judge Guzman. All three of these motions were denied and the case was set for trial before Magistrate Judge Guzman. The trial was to commence December 16,1998. According to Neat, its new attorney did not realize until sometime during the beginning of November of 1998 that Neat never received notification of the availability of the magistrate" } ]

[ { "docid": "23494783", "title": "", "text": "Automated Bookbinding Services, Inc., 471 F.2d 546 (4th Cir. 1972), the Court noted: “Possession” is one of the few terms employed by the Code for which it provides no definition. The Code’s general purpose is to create a precise guide for commercial transactions under which businessmen may predict with confidence the results of their dealings. In defining “possession” we must be guided by these considerations as well as by the underlying theories unique to Article 9. “Possession” is used throughout Article 9 in establishing the filing scheme . and in providing perfection through means other than filing, such as through the secured party’s taking possession. The ostensible ownership exercised through possession is demonstrated through simple physical control. One who controls the collateral possesses it, and leads others to believe it is his. ****** Pre-code security law defined possession as meaning physical control. ****** Perhaps the secured party must take possession from the debtor, who has possession, in order to demonstrate the ostensible ownership which indicates the perfected security interest to other potential creditors. (Emphasis Supplied). 471 F.2d 546 at 551, 552, 553, 554. Pre-code law required as open and notorious a change of possession as the nature of the property permitted in order to give plain and public notice to other creditors or purchasers of the secured party’s claim against the property. 53 A.L.R.2d 936; 79 A.L.R. 1018. There is no indication that the pre-code definition of possession has been modified. See, U.C.C. Official Comments to § 9-305; 68 Am.Jur.2d, Secured Transactions § 73; Lee, Perfection and Priorities Under the Uniform Commercial Code, 17 Wyo.L.J. 1 (1963). In light of the nature of this collateral — it was movable and capable of being loaded on trucks — the mere presence of Bank’s employees on Western’s premises, standing alone, would not, we believe, be sufficient to satisfy the requirement that notice be given to other creditors of Bank’s claimed interest in this collateral. We find appropriate the following rule cited with approval by the Court in In Re Westbrook, 228 F.Supp. 966 (E.D.Ark.1964), aff’d 337 F.2d 404 (8th Cir. 1964): The" } ]

[ { "docid": "22888437", "title": "", "text": "continued perfected in Maryland, according to the District Court. The third sentence of § 9-103(3) provides that a perfected security interest continues perfected for four months if the collateral is moved into another state. Under § 9-305 a secured party can perfect his security interest by taking possession of the collateral. HMC urges that we hold it acquired a perfected security interest under § 9-305 and that that perfected security interest continued for four months in Maryland. We reject this argument on several grounds. First, it is not clear to us that the taking of possession, spoken of in § 9-305, can be effectuated by merely not relinquishing control. HMC had not relinquished control of the binder to the bankrupt at the time it sent the bankrupt the May 22 notice. The binder never had left HMC’s control. We are not certain that this is what § 9-305 means by the secured party taking possession. Perhaps the secured party must take possession from the debtor, who has possession, in order to demonstrate the ostensible ownership which indicates the perfected security interest to other potential creditors. This issue need not be decided, since ample grounds exist upon which we base our reversal of this alternative holding. When HMC gave the binder to the common carrier in New York in late May, it relinquished possession of the machine. § 9-305 allows possession by the creditor to perfect his interest “ * * * only so long as possession is retained.” The common carrier issued a non-negotiable bill of lading naming the bankrupt as consignee. Under § 9-305 collateral held by a bailee, such as the common carrier, under a non-negotiable document is considered to be in the possession of the secured creditor only from the time the bailee receives notice of the secured creditor’s interest. No evidence was presented to show that the carrier received such notice. Therefore, HMC’s § 9-305 perfection, if it existed at all, didn’t “continue” when the binder was removed from New York to Maryland. A third ground for rejecting applicability of § 9-103(3) is predicated upon an" }, { "docid": "22175755", "title": "", "text": "Trust’s possession of the stock. It is to that question which we now turn. Historically and prior to the Code, possession of collateral by a creditor or third party has served to impart notice to prospective creditors of the possessor’s possible interest therein. The Code carries for ward the notice function which the creditor’s possession formerly provided. Notice to future lenders is furnished under the Code by a filed financing statement, § 9-302, or by the possession of the property subject to the security interest by a secured party or his agent, §§ 9-304, 9-305, depending upon the nature of the collateral. Where the Code requires perfection by possession of the secured party or his bailee, it is clear that possession by the debtor or an individual closely associated with the debtor is not sufficient to alert prospective creditors of the possibility that the debtor’s property is encumbered. See, In re Black Watch Farms, Inc., 9 UCC Rep.Serv. 151 (Ref.Dec. S.D.N.Y.1971). Thus, Official Comment 2 to § 9-305 states: “Possession may be by the secured party himself or by an agent on his behalf: it is of course clear, however, that the debtor or a person controlled by him cannot qualify as such an agent for the secured party. . . . ” It does not follow from this statement or from the policy underlying § 9-305, however, that possession of the collateral must be by an individual under the sole dominion and control of the secured party, as debtor urges us to hold. Rather, we believe that possession by a third party bailee, who is not controlled by the debtor, which adequately informs potential lenders of the possible existence of a perfected 'security interest satisfies the notice function underlying the “bailee with notice” provision of § 9-305. In the case presently before us, the collateral was held by Wilmington Trust pursuant to the terms of both the pledge and escrow agreements. Regardless of whether Wilmington Trust retained the stock as an escrow agent or as a pledge holder, its possession and the debtor’s lack of possession clearly signaled future" }, { "docid": "18906509", "title": "", "text": "for the parties was a bailee/agent for the Commissioner under § 9-305 so as to perfect the Commissioner’s security interest in the fund. The law is very clear that an escrow agent serving both parties can qualify as a bailee/agent under § 9-305. The leading case on this issue is In re Copeland, 531 F.2d 1195 (3rd Cir.1976). As the Eighth Circuit has observed, the Copeland court held “that an escrow agent, acting for the benefit of both parties, was a ‘bailee with notice’ within the meaning of 9-305 in that his possession perfected the creditor’s security interest.” In re Rolain, 823 F.2d at 199 (citing Copeland, 531 F.2d at 1203-04). “The purpose of the § 9-305 perfection requirement is to give notice to all current and potential creditors that the property was being used as collateral and could not be repledged.” Rolain, 823 F.2d at 199 (citing Copeland, 531 F.2d at 1203-04; Ingersoll-Rand Financial Corp. v. Nunley, 671 F.2d 842, 844-45 (4th Cir.1982); O.P.M., 46 B.R. at 678)). The Copeland court concluded that possession by an escrow agent who is not under the sole control of the debtor fulfills the notice function and is therefore a “bailee with notice” under § 9-305. Copeland, 531 F.2d at 1204. In Rolain, the Eighth Circuit wholly embraced the Copeland rationale and result. In re Rolain, 823 F.2d at 199-200. A majority of other courts which have faced the issue also have adopted the Copeland holding. MNB is a bailee/agent of the Commissioner under 9-305 and as such perfected the Commissioner’s interest in the escrow fund. C.R. Meats contends, however, that the contractual provisions found in the escrow agreement remove the agreement from § 9-305. C.R. Meats arguest that provisions in the escrow contract demonstrate that the parties did not intend to create a security agreement. In particular, C.R. Meats directs the Court’s, attention to the language prohibiting further encumbrances on the fund held in escrow. C.R. Meats alleges that this language demonstrates the parties never intended to create a security agreement. In support of that argument, C.R. Meats cites In re Kontaratos," }, { "docid": "4756230", "title": "", "text": "in bankruptcy claims that the Clancys, the respondents, lost their perfected interest by transferring the instruments to Seacoast. He relies primarily upon § 9305 of the California Commercial Code which provides in pertinent part: “A security interest is perfected by possession from the time possession is taken ... and continues only so long as possession is retained.... ” In contrast, the Clancys urge that they retained constructive possession through the possession of their agent and fiduciary, Seacoast. See Cal.Comm.Code § 9305, supra, Official Comment # 2. However, Comment # 2, supra, provides that “a debtor or a person controlled by him cannot qualify as such an agent for the secured party.” The trustee claims that since Seacoast is a wholly owned subsidiary and therefore controlled by the debtor, BFC, the transfer to Seacoast rendered the interest in the notes an unperfected interest. The purpose of requiring possession of an instrument by a creditor in order to perfect a security interest is to provide notice to third parties that the debtor’s collateral is encumbered. See Cal.Comm.Code, supra, Official Comment # 1. Thus the court in Heinicke Instruments Co. v. Republic Corp., 543 F.2d 700 (9th Cir.1976) stated: The debtor’s lack of possession coupled with actual possession by the creditor, the creditor’s agent or the bailee serves “to provide notice to prospective third party creditors that the debtor no longer has unfettered use of his collateral.” The notice function of U.C.C. § 9-305 would be defeated if the debtor, or a person under the debtor’s control, were left in the possession of the collateral; therefore perfection will not occur under those circumstances. Heinicke, supra, at 702 (citations omitted) (emphasis added). As this court indicated in its order dated August 6, 1979, it is clear that Seacoast was an agent of the creditors when it acquired possession. The fact that Seacoast was actually an agent does provide third parties with notice that the collateral is encumbered. See Heinicke, supra at 702. And under the circumstances of this particular case, unlike the situation in Heinicke, the collateral was never left in the control of" }, { "docid": "6384707", "title": "", "text": "is of special interest. The Court of Appeals in Transport Equipment Co. v. Guaranty State Bank, 518 F.2d 377, 381 (CA 10 1975), approved the following case language: “. . . The ostensible ownership exercised through possession is demonstrated through simple physical control. One who controls the collateral possesses it, and leads others to believe it is his. Pre-code security law defined possession as meaning physical control. Perhaps the secured party must take possession from the debtor, who has possession, in order to demonstrate the ostensible ownership which indicates the perfected security interest to other potential creditors. [Automated Book-Binding Services v. Finance Co., (4th Cir. 1972)] ... 471 F.2d 546 at 551, 552, 553, 554. “Pre-code law required as open and notorious a change of possession as the nature of the property permitted in order to give plain and public notice to other creditors or purchasers of the secured party’s claim against the property. . . . (citing authorities) . . . There is no indication that the pre-code definition of possession has been modified.” “We find appropriate the following rule cited with approval by the court in In re Westbrook, 228 F.Supp. 966 (E.D.Ark.1964), aff’d 337 F.2d 404 (CA 8 1964): The possession of the mortgagee in order to be sufficient notice to dispense with recording must be unequivocal, absolute and notorious, so that third parties may be advised. . . . ” (Emphasis added) CONCLUSION A surety may enforce every remedy which the creditor has against the principal upon the surety’s “satisfying the obligations of the principal.” However, there is no indication herein that the intervener has so satisfied the principal’s obligations on the note to the bank and the intervener cannot invoke Section 382, supra, to transfer the rights of the bank to himself. Moreover, although a surety may benefit from every security held by the creditor for the performance of the principal obligation, this only entitled a surety to the benefit of securities “held by the creditor.” Since the bank holds an unperfected security interest in the motorboat, such is inferior to the Code trustee’s lien" }, { "docid": "1070737", "title": "", "text": "that the security interest was not perfected by possession. Effect of the IRS’s Possession of Stock on Appellant’s Perfection. Appellant contends that perfection by possession continues so long as a debtor does not exert control or possess the collateral. Debtor contends that perfection by possession ceases when actual possession ceases. In the present case, resolving the issue of perfection turns on the definition of possession. Neither the Uniform Commercial Code nor the California Commercial Code define “possession.” Therefore, it has been left to the courts to determine what constitutes possession. See TriState Envelope of Maryland, Inc. v. Americans With Hart, 688 F.Supp. 769, 711 (D.D.C.1988). The underlying policy behind perfection by possession is that possession of instruments by a third party coupled with the owner’s lack of possession alerts prospective creditors that the ownership rights may be restricted or encumbered. In re Copeland, 531 F.2d 1195, 1204 (3rd Cir.1976); See also Huffman v. Wikle (In re Staff Mortgage & Inv. Corp.), 550 F.2d 1228, 1230 (9th Cir.1977). We conclude that once a debtor has parted with possession of the collateral and the secured party, personally or through an agent, obtains possession, perfection continues until the debtor exerts or regains control over the collateral. Here, there is no evidence that Debtor gained such control. To hold that simple loss of possession by the secured party per se invalidates the security interest would invite uncertainty if not injustice: a secured creditor would automatically lose its security interest which is dependent on possession whenever collateral is misplaced, converted, or wrongfully surrendered by the bailee to whom the collateral is entrusted. Here, the stock is in the hands of the IRS, presumably claiming adversely to both Debtor and Appellant. It would be a windfall and inequitable under these circumstances to allow the Debtor or someone claiming through him, such as the trustee, to profit from an adventitious event on which no one, not even a bona fide purchaser or attaching creditor, could have relied. Examining the evidence in the light most favorable to the non-moving party, the Appellant, it could be reasonable to infer" }, { "docid": "23494784", "title": "", "text": "471 F.2d 546 at 551, 552, 553, 554. Pre-code law required as open and notorious a change of possession as the nature of the property permitted in order to give plain and public notice to other creditors or purchasers of the secured party’s claim against the property. 53 A.L.R.2d 936; 79 A.L.R. 1018. There is no indication that the pre-code definition of possession has been modified. See, U.C.C. Official Comments to § 9-305; 68 Am.Jur.2d, Secured Transactions § 73; Lee, Perfection and Priorities Under the Uniform Commercial Code, 17 Wyo.L.J. 1 (1963). In light of the nature of this collateral — it was movable and capable of being loaded on trucks — the mere presence of Bank’s employees on Western’s premises, standing alone, would not, we believe, be sufficient to satisfy the requirement that notice be given to other creditors of Bank’s claimed interest in this collateral. We find appropriate the following rule cited with approval by the Court in In Re Westbrook, 228 F.Supp. 966 (E.D.Ark.1964), aff’d 337 F.2d 404 (8th Cir. 1964): The possession of the mortgagee in order to be sufficient notice to dispense with record must be unequivocal, absolute and notorious, so that third persons may be advised. Symbolical possession only, as by the parties walking around the property and agreeing that it shall henceforward be regarded as in possession of the mortgagee . is not sufficient. [Citing Hughes, Ar kansas Mortgages § 142, p. 117 (1930)]. 228 F.Supp. 966 at 968. Finally, Bank contends that it “perfected” its security interest by filing and that while by taking possession of the collateral its interest became “enforceable” — and presumably “attached” for purposes of K.S.A. 84-9-312(5)(a) — “possession” was not a necessary step towards perfection. Hence, it argues, its priority must be determined under the “first to file” rule of K.S.A. 84-9-312(5)(a), citing First National Bank and Trust Company of Vinita, Oklahoma v. Atlas Credit Corporation, 417 F.2d 1081 (10th Cir. 1969). This novel argument is made without citation of cogent authority and is, in our opinion, erroneous and confuses the issue. Prior to Bank’s taking possession" }, { "docid": "8311535", "title": "", "text": "Coogan § 6C.08[1][d], at p. 6C-132. See Coogan, Security Interests in Investment Securities Under Revised Article 8 of the Uniform Commercial Code, 92 Harv.L.Rev. 1013, 1057 (1979). See also In re Copeland, 531 F.2d 1195, 1204, 18 UCC Rep. 833, 843 (3d Cir.1976). . In re Copeland, 531 F.2d 1195, 1204, 18 UCC Rep. 833, 843 (3d Cir.1976); In re North American Builders, Inc., 320 F.Supp. 1229, 8 UCC Rep. 1132, 1135 (D.Neb.1970); In re Black Watch Farms, Inc., 9 UCC Rep. 151, 155 (S.D.N.Y.B.J.1971). See note 60 supra & accompanying text. Cf. In re Dolly Madison Industries, Inc., 351 F.Supp. 1038, 1042, 11 UCC Rep. 926, 931 (E.D.Pa.1972) [escrow agent may serve only the role stipulated in escrow agreement], aff'd. per curiam, 480 F.2d 917 (3d Cir.1973). . “Historically and prior to the Code, possession of collateral by a creditor or third party has served to impart notice to prospective creditors of the possessor’s possible interest therein.” In re Copeland, 531 F.2d 1195, 1203, 18 UCC Rep. 833, 843 (3d Cir.1976). (Emphasis added.) Hale concedes that a bailee controlled by the debtor would not satisfy the notice requirements of UCC § 9-305. Supplemental Memorandum of Roger P. Hale, filed February 18, 1981, at 20. .See UCC §§ 8-204 & 8-201(l)(a), (c) & (3). See also Restatement of Security, § 22, Comment 6; Restatement of Torts, § 223(f). See also note 66 supra. Hale points out appropriately enough that DTC is not under the control of the debtors as concerns the retention of these securities as collateral for the DTC loan, since DTC may reasonably be expected to safeguard its own interests by retaining the collateral until its debt is satisfied. The appropriate test is not the adequacy of DTC’s possession as a means of perfecting its own security interest, however, but that of Hale. The timing and direction of the post-performance disposition of the collateral remains within the control of the debtors throughout. Therefore, the ‘equity cushion’ to which the Hale security interest attaches remains under the control of the debtors in these circumstances. See Jenkins v. National Village" }, { "docid": "22175754", "title": "", "text": "While it is true that the Code does not wholly displace the common law, § 1-103, nor abolish existing security devices, Official Comment 2, § 9-102, Article 9 simplifies pre-Code secured financing by providing for the unitary treatment of all security arrangements. It eliminates many of the antiquated distinctions between various security devices in favor of a single “security interest”, §§ 9-102,1-201(37), and a single set of rules regarding creation and perfection, designed to govern “any transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures including goods, documents, instruments . . ..” § 9-102. Since neither party denies that the pledge and escrow agreements were intended to create a security interest in the stock within the meaning of the Uniform Commercial Code, we attach no particular significance to the common law distinctions between the pledge and the escrow which debtor stresses, except insofar as they bear on the question of whether Pension Benefit’s security interest was properly perfected under § 9-305 of the Code through Wilmington Trust’s possession of the stock. It is to that question which we now turn. Historically and prior to the Code, possession of collateral by a creditor or third party has served to impart notice to prospective creditors of the possessor’s possible interest therein. The Code carries for ward the notice function which the creditor’s possession formerly provided. Notice to future lenders is furnished under the Code by a filed financing statement, § 9-302, or by the possession of the property subject to the security interest by a secured party or his agent, §§ 9-304, 9-305, depending upon the nature of the collateral. Where the Code requires perfection by possession of the secured party or his bailee, it is clear that possession by the debtor or an individual closely associated with the debtor is not sufficient to alert prospective creditors of the possibility that the debtor’s property is encumbered. See, In re Black Watch Farms, Inc., 9 UCC Rep.Serv. 151 (Ref.Dec. S.D.N.Y.1971). Thus, Official Comment 2 to § 9-305 states: “Possession may be by the secured" }, { "docid": "18783541", "title": "", "text": "at length perfection of liens in stock certificates, and holds, in part, discussing SON-SOS of the UCC (adopted by reference in 30-8-321): “ ‘Notification’ to the ‘bailee’ of the secured party’s interest under these circumstances means notification by the pledgor to the bailee, because relinquishment by the pledgor of control over the disposition of the collateral following performance is indispensable to the creation of a bailment conformable with the requirements of UCC Section 9-305 for the perfection of the secondary pledge.” There is no evidence in the record that the Debtor as pledgor ever notified the bailee transfer agent of his pledge of stock as security for the loan from his mother Gladys. Further the case of Appeal of Copeland, 531 F.2d 1195, 1204 (3rd Cir.1976) appropriately holds: “Where the Code requires perfection by possession of the secured party or his bailee, it is clear that possession by the debtor or an individual closely associated with the debtor is not sufficient to alert prospective creditors of the possibility that the debtor’s property is encumbered.” Mr. Keil held all of the stock of shareholders in the minute book. The Debtor’s stock was not segregated from the other shares. Since there was absence of notice by the pledgor, the possession of the stock by the attorney who held all shares of stock in trust for all shareholders does not satisfy the rule enunciated in the Copeland case. IT IS ORDERED the motion for relief from the automatic stay is denied. IT IS FURTHER ORDERED the Trustee shall liquidate the above stock of the Debt- or held in Baquet Farms, Inc. by sale in accordance with the shareholders agreement of December 28, 1982, at a price of $7.00 per share." }, { "docid": "6384705", "title": "", "text": "his co-sureties to contribute thereto, without regard to the order of time in which they became such.” In addition, 15 Okl.Stat. (1971) § 383 provides: “A surety is entitled to the benefit of every security for the performance of the principal obligation, held by the creditor or by a co-surety, at the time of entering into the contract of suretyship, or acquired by him afterwards, whether the surety was aware of the security or not.” “Possession\" Under 12A Okl.Stat. (1971) § 9-204: “A security interest cannot attach until there is agreement [subsection (3) of Section 1-201] that it attach and value is given and the debtor has rights in the collateral. It attaches as soon as all the events in the preceding sentence have taken place unless explicit agreement postpones the time of attaching ...” Furthermore, as to when possession can perfect a security interest without filing, 12A Okl.Stat. (1971) § 9-305 provides: “A security interest in .. . goods . . . may be perfected by the secured party’s taking possession of the collateral. If such collateral other than goods covered by a negotiable document is held by a bailee, the secured party is deemed to have possession from the time the bailee receives notification of the secured party’s interest. A security interest is perfected by possession from the time possession is taken without relation back and continues only so long as possession is retained, unless otherwise specified in this Article. The security interest may be otherwise perfected as provided in this Article before or after the period of possession by the secured party.” (Emphasis added) As to who must have possession, the court in Appeal of Copeland, 531 F.2d 1195, 1204 (CA 3 1976), observed: “Where the Code requires perfection by possession of the secured party or his bailee, it is clear that possession by the debtor or an individual closely associated with the debtor is not sufficient to alert prospective creditors of the possibility that the debtor’s property is encumbered .. . . ” (authority cited) (Emphasis added) The meaning of the word “possession” in this section" }, { "docid": "6384708", "title": "", "text": "“We find appropriate the following rule cited with approval by the court in In re Westbrook, 228 F.Supp. 966 (E.D.Ark.1964), aff’d 337 F.2d 404 (CA 8 1964): The possession of the mortgagee in order to be sufficient notice to dispense with recording must be unequivocal, absolute and notorious, so that third parties may be advised. . . . ” (Emphasis added) CONCLUSION A surety may enforce every remedy which the creditor has against the principal upon the surety’s “satisfying the obligations of the principal.” However, there is no indication herein that the intervener has so satisfied the principal’s obligations on the note to the bank and the intervener cannot invoke Section 382, supra, to transfer the rights of the bank to himself. Moreover, although a surety may benefit from every security held by the creditor for the performance of the principal obligation, this only entitled a surety to the benefit of securities “held by the creditor.” Since the bank holds an unperfected security interest in the motorboat, such is inferior to the Code trustee’s lien creditor status. Read 11 U.S.C. § 544(a). Significantly, although Oklahoma’s Uniform Commercial Code allows a secured party to perfect his security interest by possession without the filing of a financing statement, the possession must be by the secured party himself or by a bailee with express notice of the security interest. Mere possession by the debtor or a person closely associated with him cannot perfect the secured party’s interest. The intervener is both the debtor’s father and co-debtor, and cannot qualify as an agent for the bank. See Appeal of Copeland, supra. Actually, the intervener gained “possession” of the boat merely by agreeing to provide a place to store the boat for the debtor’s convenience and at the debtor’s request. The debtor could have removed the boat at any time had he so wished. This was not the required “unequivocal, absolute and notorious” notice to others. Transport Equipment Co. v. Guaranty State Bank, supra. Addedly, Section 383, supra, may also require the surety to satisfy the principal’s obligation before he is entitled to such benefit" }, { "docid": "15838634", "title": "", "text": "with good exposure. Purmont relies upon authority holding that possession by a third party bailee, who is not controlled by the debtor, which adequately informs potential lenders of the possible existence of a perfected security interest satisfies the notice function underlying the “bailee with notice” provision of § 9-305. In re Copeland, 531 F.2d 1195, 1204 (3d Cir.1976); accord, In re King, 10 B.R. 685, 31 UCC Rep. 697 (Bkrtcy.E.D.Tenn.1981). Official Comment 2 to UCC § 9-305 states: “Possession may be by the secured party himself or by an agent on his behalf: it is of course clear, however, that the debtor or a person controlled by him cannot qualify as such an agent for the secured party.” Although the debtor testified that he and Purmont agreed on the manner in which the proceeds of a sale would be distributed, we conclude that storing the boat on the property of a relative of the debtor does not constitute “taking possession of the collateral” by an alleged secured party, within the meaning of UCC § 9-305. The relationship of Purmont vis-a-vis the debtor is not the usual arms-length situation existing between debtor and secured party, and this makes for a closer case than there would be otherwise. Nevertheless, Purmont has failed to demonstrate to the satisfaction of the Court that the debtor’s wife’s cousin was not “controlled by” the debtor within the meaning of the Uniform Commercial Code, or more importantly, that the placing of the boat on her property “adequately informed potential lenders of the possible existence of a perfected security interest.” Accordingly, it is ordered that the bank’s Complaint for Reclamation and for Relief from the Automatic Stay is granted. . UCC § 9-312(5)(a) provides for priority between conflicting security interests as follows: Conflicting security interests rank according to priority in time of filing or perfection. Priority dates from the time a filing is first made covering the collateral or the time the security interest is first perfected, whichever is earlier, provided that there is no period thereafter when there is neither filing nor perfection. . Virtually all acts" }, { "docid": "18783540", "title": "", "text": "agreement were not followed or adhered in this case. To paraphrase an old addage, he who lives by the sword of the agreement, may also perish by that sword. “A party cannot avail himself of the benefits of a contract on the one hand, but avoid the burdens of that same contract on the other hand.” Blumfield Agency v. Little Belt, Inc., — Mont. —, 663 P.2d 1164, 1166 (1983). By virtue of the total disregard of Sections 30-8-321, MCA, in failing to give notice to the stock transfer agent of the corporation of the pledge of stock and Gladys’ further disregard of the stockholders agreement, she cannot become or is not a secured creditor in the Debtor’s stock as opposed to the Trustee. 11 U.S.C. 544. Smith v. Dion Vincent, Inc., 47 Or.App. 887, 615 P.2d 1097, 1100 (1980) holds: “If the secured party’s interest is not perfected, however, the trustee in bankruptcy, who has the status of a lien creditor, prevails.” See also In Re Kontaratos, 10 B.R. 956, (Bankr.Maine 1981), which discusses at length perfection of liens in stock certificates, and holds, in part, discussing SON-SOS of the UCC (adopted by reference in 30-8-321): “ ‘Notification’ to the ‘bailee’ of the secured party’s interest under these circumstances means notification by the pledgor to the bailee, because relinquishment by the pledgor of control over the disposition of the collateral following performance is indispensable to the creation of a bailment conformable with the requirements of UCC Section 9-305 for the perfection of the secondary pledge.” There is no evidence in the record that the Debtor as pledgor ever notified the bailee transfer agent of his pledge of stock as security for the loan from his mother Gladys. Further the case of Appeal of Copeland, 531 F.2d 1195, 1204 (3rd Cir.1976) appropriately holds: “Where the Code requires perfection by possession of the secured party or his bailee, it is clear that possession by the debtor or an individual closely associated with the debtor is not sufficient to alert prospective creditors of the possibility that the debtor’s property is encumbered.” Mr." }, { "docid": "18906508", "title": "", "text": "a security interest in ... money ... may be perfected by the secured parties taking possession of the collateral. If such collateral ... is held by a bailee, the secured party is deemed to have possession from the time the bailee receives notification of the secured parties interest. Iowa Code § 554.9305. Official comment two which accompanies this provision provides that: “possession may be by the secured party himself or by an agent on his behalf; it is of course clear, however, that the debtor or a person controlled by him cannot qualify as such an agent for the secured party ...” In re Rolain, 823 F.2d 198, 199 (8th Cir.1987). Iowa Code § 554.11109 notes that these comments are evidence of the legislature’s intent in enacting the statute. In the matter before this Court, pursuant to the escrow agreement, C.R. Meats placed the funds in an escrow account with MNB. MNB functioned as the escrow agent for both C.R. Meats and the Commissioner. The question here becomes whether MNB serving as the escrow agent for the parties was a bailee/agent for the Commissioner under § 9-305 so as to perfect the Commissioner’s security interest in the fund. The law is very clear that an escrow agent serving both parties can qualify as a bailee/agent under § 9-305. The leading case on this issue is In re Copeland, 531 F.2d 1195 (3rd Cir.1976). As the Eighth Circuit has observed, the Copeland court held “that an escrow agent, acting for the benefit of both parties, was a ‘bailee with notice’ within the meaning of 9-305 in that his possession perfected the creditor’s security interest.” In re Rolain, 823 F.2d at 199 (citing Copeland, 531 F.2d at 1203-04). “The purpose of the § 9-305 perfection requirement is to give notice to all current and potential creditors that the property was being used as collateral and could not be repledged.” Rolain, 823 F.2d at 199 (citing Copeland, 531 F.2d at 1203-04; Ingersoll-Rand Financial Corp. v. Nunley, 671 F.2d 842, 844-45 (4th Cir.1982); O.P.M., 46 B.R. at 678)). The Copeland court concluded that possession" }, { "docid": "22888434", "title": "", "text": "creditor’s security interest, would think the collateral belonged to the debtor. In contrast, creditors today can learn of pre-existing security interests through the filing provisions of the Code and a debtor’s use of the collateral is no longer considered fraudulent, § 9-205. Filing is required, with certain exceptions, to perfect the security interest, so that creditors may learn of the pre-existing interest. “Possession” is used throughout Article 9 in establishing the filing scheme, in permitting debtors to retain use of collateral, and in providing perfection through means other than filing, such as through the secured party’s taking possession. The ostensible ownership exercised through possession is demonstrated through simple physical control. One who controls the collateral possesses it, and leads others to believe it is his. Gilmore, a draftsman of Article 9, explains: “Receives possession” is evidently meant to refer to the moment when the goods are physically delivered at the debtor’s place of business — not to the possibility of the debtor’s acquiring rights in the goods at an earlier point by identification or appropriation to the contract or by shipment under a term under which the debtor bears the risk. 2 Gilmore, Security Interests in Personal Property 787 (1965). Pre-code security law defined possession as meaning physical control. Tender of delivery is a sales concept, employed by Article 2, which binds a buyer and seller to contractual conditions. It affects their rights against each other. It would be a serious error to allow those private conditions to affect the carefully defined rights of creditors under Article 9. Secured parties are required, in most cases, to file a financing statement in order to perfect their security interest. To define “possession” as requiring completion of tender of delivery terms would permit a secured creditor to delay performance of a tender of delivery term, and thereby avoid the filing requirement indefinitely. Even if a debt- or would have use of the collateral he would not be deemed to have “possession,” under the District Court’s analysis, and purchase money security interest holders filing after complying with a tender of delivery term, at any" }, { "docid": "6384706", "title": "", "text": "If such collateral other than goods covered by a negotiable document is held by a bailee, the secured party is deemed to have possession from the time the bailee receives notification of the secured party’s interest. A security interest is perfected by possession from the time possession is taken without relation back and continues only so long as possession is retained, unless otherwise specified in this Article. The security interest may be otherwise perfected as provided in this Article before or after the period of possession by the secured party.” (Emphasis added) As to who must have possession, the court in Appeal of Copeland, 531 F.2d 1195, 1204 (CA 3 1976), observed: “Where the Code requires perfection by possession of the secured party or his bailee, it is clear that possession by the debtor or an individual closely associated with the debtor is not sufficient to alert prospective creditors of the possibility that the debtor’s property is encumbered .. . . ” (authority cited) (Emphasis added) The meaning of the word “possession” in this section is of special interest. The Court of Appeals in Transport Equipment Co. v. Guaranty State Bank, 518 F.2d 377, 381 (CA 10 1975), approved the following case language: “. . . The ostensible ownership exercised through possession is demonstrated through simple physical control. One who controls the collateral possesses it, and leads others to believe it is his. Pre-code security law defined possession as meaning physical control. Perhaps the secured party must take possession from the debtor, who has possession, in order to demonstrate the ostensible ownership which indicates the perfected security interest to other potential creditors. [Automated Book-Binding Services v. Finance Co., (4th Cir. 1972)] ... 471 F.2d 546 at 551, 552, 553, 554. “Pre-code law required as open and notorious a change of possession as the nature of the property permitted in order to give plain and public notice to other creditors or purchasers of the secured party’s claim against the property. . . . (citing authorities) . . . There is no indication that the pre-code definition of possession has been modified.”" }, { "docid": "1070736", "title": "", "text": "person controlled by him cannot qualify as such an agent for the secured party.... U.C.C. § 9-305 Comment 2 (1977). In the present case, Appellant alleges that Gardner was designated as the escrow holder of Debtor’s stock certificates for Appellant and that Gardner acted as Appellant’s bailee when he received notice of his status. Since Gardner had possession of the Debtor’s stock, Appellant argues that her security interest was perfected when Gardner received notice of Appellant’s interest in the stock. Debtor contends that Gardner never acted as bailee for Appellant, but instead acted as an agent for Debtor. Viewing the evidence in the light most favorable to the non-moving party, the Appellant, it would be reasonable to infer that Gardner was Appellant’s bailee. Since Gardner’s role was relevant to determining whether perfection by possession was effectuated, a genuine issue of material fact exists with respect to perfection. Because a critical fact is subject to dispute it would be inappropriate to grant summary judgment to avoid Appellant’s security interest in the stock based upon the grounds that the security interest was not perfected by possession. Effect of the IRS’s Possession of Stock on Appellant’s Perfection. Appellant contends that perfection by possession continues so long as a debtor does not exert control or possess the collateral. Debtor contends that perfection by possession ceases when actual possession ceases. In the present case, resolving the issue of perfection turns on the definition of possession. Neither the Uniform Commercial Code nor the California Commercial Code define “possession.” Therefore, it has been left to the courts to determine what constitutes possession. See TriState Envelope of Maryland, Inc. v. Americans With Hart, 688 F.Supp. 769, 711 (D.D.C.1988). The underlying policy behind perfection by possession is that possession of instruments by a third party coupled with the owner’s lack of possession alerts prospective creditors that the ownership rights may be restricted or encumbered. In re Copeland, 531 F.2d 1195, 1204 (3rd Cir.1976); See also Huffman v. Wikle (In re Staff Mortgage & Inv. Corp.), 550 F.2d 1228, 1230 (9th Cir.1977). We conclude that once a debtor has parted" }, { "docid": "15838633", "title": "", "text": "the bank’s filing of its UCC-1 in July 1981. If Purmont took possession of the boat within the meaning of UCC § 9-305 prior to that date, then he would have properly perfected his security interest in the boat, prior in time to the perfection of the bank’s security interest, and should prevail here. “A security interest in ... goods ... may be perfected by the secured party’s taking possession of the collateral.” UCC § 9-305. If, however, Purmont did not take possession prior to the bank’s perfection of its security interest (by filing) in July 1981, then the bank is entitled to the relief requested. The manner in which Purmont took “possession of the collateral” is critical. Pur-mont’s alleged possession of the collateral, prior to the time the bank perfected its security interest, consisted of the debtor’s storing the boat, with Purmont’s .approval, on the property of the cousin of the debtor’s wife, where it had been placed for the purpose of attempting a sale. That location is adjacent to a heavily traveled road with good exposure. Purmont relies upon authority holding that possession by a third party bailee, who is not controlled by the debtor, which adequately informs potential lenders of the possible existence of a perfected security interest satisfies the notice function underlying the “bailee with notice” provision of § 9-305. In re Copeland, 531 F.2d 1195, 1204 (3d Cir.1976); accord, In re King, 10 B.R. 685, 31 UCC Rep. 697 (Bkrtcy.E.D.Tenn.1981). Official Comment 2 to UCC § 9-305 states: “Possession may be by the secured party himself or by an agent on his behalf: it is of course clear, however, that the debtor or a person controlled by him cannot qualify as such an agent for the secured party.” Although the debtor testified that he and Purmont agreed on the manner in which the proceeds of a sale would be distributed, we conclude that storing the boat on the property of a relative of the debtor does not constitute “taking possession of the collateral” by an alleged secured party, within the meaning of UCC § 9-305." }, { "docid": "22888433", "title": "", "text": "when the bankrupt received possession, perfection would have to occur within 10 days after the bankrupt obtained possession in order for HMC’s interest to take priority. We reject the District Court’s holding that possession was received by the bankrupt when the tender of delivery terms of HMC and the bankrupt were completed, between June 13 and 19. Such an approach confuses the Article 2 tender of delivery concept with the Article 9 notion of possession. “Possession” is one of the few terms employed by the Code for which it provides no definition. The Code’s general purpose is to create a precise guide for commercial transactions under which businessmen may predict with confidence the results of their dealings. In defining “possession” we must be guided by these considerations as well as by the underlying theories unique to Article 9. Under pre-code law, a security interest became invalid if the debtor was allowed uncontrolled dominion ovar the collateral. Exercise of such ostensible ownership could perpetrate fraud on potential creditors who, not being able to know of the creditor’s security interest, would think the collateral belonged to the debtor. In contrast, creditors today can learn of pre-existing security interests through the filing provisions of the Code and a debtor’s use of the collateral is no longer considered fraudulent, § 9-205. Filing is required, with certain exceptions, to perfect the security interest, so that creditors may learn of the pre-existing interest. “Possession” is used throughout Article 9 in establishing the filing scheme, in permitting debtors to retain use of collateral, and in providing perfection through means other than filing, such as through the secured party’s taking possession. The ostensible ownership exercised through possession is demonstrated through simple physical control. One who controls the collateral possesses it, and leads others to believe it is his. Gilmore, a draftsman of Article 9, explains: “Receives possession” is evidently meant to refer to the moment when the goods are physically delivered at the debtor’s place of business — not to the possibility of the debtor’s acquiring rights in the goods at an earlier point by identification or appropriation" } ]

[ { "docid": "22116563", "title": "", "text": "at conception,” and that “unborn children have protectable interests in life, health, and well-being.” Mo. Rev. Stat. §§ 1.205.1(1), (2) (1986). The Act further requires that all Missouri laws be interpreted to provide unborn children with the same rights enjoyed by other persons, subject to the Federal Constitution and this Court’s precedents. §1.205.2. Among its other provisions, the Act requires that, prior to performing an abortion on any woman whom a physician has reason to believe is 20 or more weeks pregnant, the physician ascertain whether the fetus is viable by performing “such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child. ” § 188.029. The Act also prohibits the use of public employees and facilities to perform or assist abortions not necessary to save the mother’s life, and it prohibits the use of public funds, employees, or facilities for the purpose of “encouraging or counseling” a woman to have an abortion not necessary to save her life. §§ 188.205, 188.210, 188.215. In July 1986, five health professionals employed by the State and two nonprofit corporations brought this class action in the United States District Court for the Western District of Missouri to challenge the constitutionality of the Missouri statute. Plaintiffs, appellees in this Court, sought declaratory and injunctive relief on the ground that certain statutory provisions violated the First, Fourth, Ninth, and Fourteenth Amendments to the Federal Constitution. App. A9. They asserted violations of various rights, including the “privacy rights of pregnant women seeking abortions”; the “woman’s right to an abortion”; the “righ[t] to privacy in the physician-patient relationship”; the physician’s “righ[t] to practice medicine”; the pregnant woman’s “right to life due to inherent risks involved in childbirth”; and the woman’s right to “receive . . . adequate medical advice and treatment” concerning abortions. Id., at A17-A19. Plaintiffs filed this suit “on their own behalf and on behalf of the entire class consisting of facilities and Missouri licensed physicians or other health care professionals offering abortion services or pregnancy counseling and on behalf of the" } ]

[ { "docid": "22116575", "title": "", "text": "without providing corresponding services for nontherapeutic abortions.” More recently, in Harris v. McRae, 448 U. S. 297 (1980), the Court upheld “the most restrictive version of the Hyde Amendment,” id., at 325, n. 27, which withheld from States federal funds under the Medicaid program to reimburse the costs of abortions, “‘except where the life of the mother would be endangered if the fetus were carried to term.’” Ibid, (quoting Pub. L. 94-439, § 209, 90 Stat. 1434). As in Maher and Poelker, the Court required only a showing that Congress’ authorization of “reimbursement for medically necessary services generally, but not for certain medically neces sary abortions” was rationally related to the legitimate governmental goal of encouraging childbirth. 448 U. S., at 325. The Court of Appeals distinguished these cases on the ground that “[t]o prevent access to a public facility does more than demonstrate a political choice in favor of childbirth; it clearly narrows and in some cases forecloses the availability of abortion to women.” 851 F. 2d, at 1081. The court reasoned that the ban on the use of public facilities “could prevent a woman’s chosen doctor from performing an abortion because of his unprivileged status at other hospitals or because a private hospital adopted a similar anti-abortion stance.” Ibid. It also thought that “[s]uch a rule could increase the cost of obtaining an abortion and delay the timing of it as well.” Ibid. We think that this analysis is much like that which we rejected in Maher, Poelker, and McRae. As in those cases, the State’s decision here to use public facilities and staff to encourage childbirth over abortion “places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy.” McRae, 448 U. S., at 315. Just as Congress’ refusal to fund abortions in McRae left “an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all,” id., at 317, Missouri’s refusal to allow public employees to" }, { "docid": "3014027", "title": "", "text": "programs. It may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program. But a State may not accomplish such a purpose by invidious distinctions between classes of its citizens. It could not, for example, reduce expenditures for education by barring indigent children from its schools. Similarly, in the cases before us, appellants must do more than show that denying welfare benefits to new residents saves money. The saving of welfare costs cannot justify an otherwise invidious classification. All post-Roe case authority supports the proposition that statutes or administrative policies which restrict reimbursement for abortions are unconstitutional. Doe v. Wohlgemuth, supra, aff’d on other grds., Doe v. Beal, supra; Doe v. Rose, 499 F.2d 1112 (10th Cir. 1974); Wulff v. Singleton, 508 F.2d 1211 (8th Cir. 1975); and Doe v. Rampton, 366 F.Supp. 189 (D.C.Utah 1973). For the reasons stated above, we find that Section 7 of the Abortion Control Act is in conflict with Title XIX of the Social Security Act. As to non-Title XIX funds, Section 7 violates the Equal Protection Clause of the Fourteenth Amendment and is inconsistent with the Supreme Court’s decision in Roe; accordingly, we hold that Section 7 is unconstitutional. IX. Regulations Section 8 of the Act gives the Department of Health the authority to make rules and regulations with respect to the performance of abortions and the facilities in which abortions are performed. Plaintiffs contend that this provision intrudes upon the pregnant woman’s fundamental right of privacy. The challenged section is as follows: Section 8. Regulations. The Department of Health shall have power to make rules and regulations pursuant to this act, with respect to performance of abortions and with respect to facilities in which abortions are performed, so as to protect the health and safety of women having abortions and of premature infants aborted alive. Said rules and regulations shall include, but not be limited to procedures, staff, equipment, and laboratory testing requirements for all facilities offering abortion services. Plaintiffs’ assault on Section 8 is premature. This provision of Act 209 is merely an enabling provision" }, { "docid": "22116573", "title": "", "text": "while § 188.215 makes it “unlawful for any public facility to be used for the purpose of performing or assisting an abortion not necessary to save the life of the mother.” The Court of Appeals held that these provisions contravened this Court’s abortion decisions. 851 F. 2d, at 1082-1083. We take the contrary view. As we said earlier this Term in DeShaney v. Winnebago County Dept. of Social Services, 489 U. S. 189, 196 (1989): “[O]ur cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” In Maher v. Roe, supra, the Court upheld a Connecticut welfare regulation under which Medicaid recipients received payments for medical services re lated to childbirth, but not for nontherapeutic abortions. The Court rejected the claim that this unequal subsidization of childbirth and abortion was impermissible under Roe v. Wade. As the Court put it: “The Connecticut regulation before us is different in kind from the laws invalidated in our previous abortion decisions. The Connecticut regulation places no obstacles — absolute or otherwise — in the pregnant woman’s path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut’s decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there. The indigency that may make it difficult — and in some cases, perhaps, impossible — for some women to have abortions is neither created nor in any way affected by the Connecticut regulation.” 432 U. S., at 474. Relying on Maher, the Court in Poelker v. Doe, 432 U. S. 519, 521 (1977), held that the city of St. Louis committed “no constitutional violation ... in electing, as a policy choice, to provide publicly financed hospital services for childbirth" }, { "docid": "21607251", "title": "", "text": "international terrorism could contest restrictions on aid to “entities associated with” the Palestinian Liberation Organization, see 22 U.S.C. § 2227. Plaintiffs-appellants have not proposed any means of distinguishing between the Mexico City Statement and these other policies directed at non-citizens that have an incidental impact on the first amendment rights of citizens. AID’s implementation of the executive branch’s decision to restrict the class of foreign beneficiaries of American assistance must be upheld if rationally related to the policy goal. See, e.g., International Union, 485 U.S. at 365-66, 108 S.Ct. at 1189; Taxation With Representation, 461 U.S. at 548, 103 S.Ct. at 2002. The district court found that the Standard Clause is narrowly tailored and does not diverge from what is required by the Mexico City Statement. Planned Parenthood, 1990 WL 26306 at *7, 1990 U.S. Dist. LEXIS 2430 at *20. Plaintiffs-appellants contend that AID could authorize the use of segregated accounts to allow foreign NGOs to accept restricted funds from AID while expending their own funds for abortion-related activities. While segregated accounts would be less restrictive than the Standard Clause, such accounts would not advance the policy that the United States will “withhold federal assistance from foreign nongovernmental organizations (“NGOs”) that perform or actively promote abortions, even if those activities are financed with non-federal funds.\" Planned Parenthood I, 838 F.2d at 651 (emphasis added); see also Mexico City Statement at 5. Plaintiffs-appellants do not suggest any manner of limiting AID’s implementation that is consistent with the policy enunciated in the Mexico City Statement. The Standard Clause goes no further than necessary to implement an otherwise nonjusticiable decision limiting the class of beneficiaries of foreign aid, and any burden on plaintiffs-appellants’ rights is incidental to that policy decision. We therefore affirm the dismissal of plaintiffs-appellants’ first amendment claims. As to the privacy claim asserted by plaintiff-appellant Doe, the district court repeated the analysis applied to the first amendment claims and found that the Standard Clause erected no affirmative obstacles to Doe’s ability to obtain abortion-related advice. Planned Parenthood, 1990 WL 26306 at *8-9, 1990 U.S. Dist. LEXIS 2430 at *25-26. Doe" }, { "docid": "22116602", "title": "", "text": "Missouri’s declaration of when life begins should be upheld “insofar as it relates to subjects other than abortion,” such as “creating causes of action against persons other than the mother” for wrongful death or extending the protection of the criminal law to fetuses. 851 F. 2d, at 1085 (opinion concurring in part and dissenting in part). Appellees also claim that the legislature’s preamble violates the Missouri Constitution. Brief for Appellees 23-26. But the considerations discussed in the text make it equally inappropriate for a federal court to pass upon this claim before the state courts have interpreted the statute. The statute defines “public employee” to mean “any person employed by this state or any agency or political subdivision thereof.” Mo. Rev. Stat. § 188.200(1) (1986). “Public facility” is defined as “any public institution, public facility, public equipment, or any physical asset owned, leased, or controlled by this state or any agency or political subdivisions thereof.” § 188.200(2). A different analysis might apply if a particular State had socialized medicine and all of its hospitals and physicians were publicly funded. This case might also be different if the State barred doctors who performed abortions in private facilities from the use of public facilities for any purpose. See Harris v. McRae, 448 U. S. 297, 317, n. 19 (1980). The suit in Poelker was brought by the plaintiff “on her own behalf and on behalf of the entire class of pregnant women residents of the City of St. Louis, Missouri, desiring to utilize the personnel, facilities and services of the general public hospitals within the City of St. Louis for the termination of pregnancies.” Doe v. Poelker, 497 F. 2d 1063, 1065 (CA8 1974). In a separate opinion, Judge Arnold argued that Missouri’s prohibition violated the First Amendment because it “sharply diseriminate[s] between kinds of speech on the basis of their viewpoint: a physician, for example, could discourage an abortion, or counsel against it, while in a public facility, but he or she could not encourage or counsel in favor of it.” 851 F. 2d, at 1085. While the Court of Appeals" }, { "docid": "21607243", "title": "", "text": "” Planned Parenthood, 1990 WL 26306 at *8, 1990 U.S. Dist. LEXIS 2430 at *24 (quoting O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679). The court found that the direct, viewpoint-based restrictions on foreign NGOs did not preclude application of the O’Brien test because “[t]he government may, as a matter of its foreign policy choices, discriminate on the basis of its political views in deciding which foreign governments and NGOs will further United States interests and one vehicle it may employ in doing so is its power to grant foreign assistance.” Id., 1990 WL 26306 at *6, 1990 U.S. Dist. LEXIS 2430 at *18. The court also dismissed Doe’s privacy claim, finding that the Standard Clause was not an “ ‘affirmative legal obstacle to abortion services’ ” and that its “ ‘practical effect ... on the availability of abortion services is constitutionally irrelevant.’ ” Id., 1990 WL 26306 at *8, 1990 U.S. Dist. LEXIS 2430 at *25 (quoting New York v. Sullivan, 889 F.2d 401, 411 (2d Cir.1989), cert. granted, — U.S. -, 110 S.Ct. 2559, 109 L.Ed.2d 742 (1990)). DISCUSSION The government’s “decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.” Regan v. Taxation With Representation, 461 U.S. 540, 549, 103 S.Ct. 1997, 2003, 76 L.Ed.2d 129 (1983). The government may deny food stamps to a household because one of its members is participating in a labor strike, Lyng v. International Union, United Auto. Workers, 485 U.S. 360, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988); it may deny tax-exempt status to an organization because it engages in lobbying, Taxation With Representation, 461 U.S. 540, 103 S.Ct. 1997; it may provide public funding to some candidates for public office and deny such funding to others, Buckley v. Valeo, 424 U.S. 1, 90-107, 96 S.Ct. 612, 668-77, 46 L.Ed.2d 659 (1976) (per curiam); and it may deny tax deductions for amounts expended for the promotion or defeat of legislation and initiative measures, Cammarano v. United States, 358 U.S. 498, 79 S.Ct. 524, 3 L.Ed.2d 462 (1959)." }, { "docid": "21607254", "title": "", "text": "otherwise eligible candidate simply because that candidate had exercised her constitutionally protected freedom to terminate her pregnancy by abortion.” 448 U.S. at 317 n. 19, 100 S.Ct. at 2688 n. 19. The district court properly found that the Standard Clause imposes no such “penalty.” There is no allegation in the complaint that Doe will lose her ability to go to an AID-funded clinic if she “exercise[s] her constitutionally protected freedom to terminate her pregnancy by abortion” at a facility unrelated to the clinic. Id. Nor is there any allegation in the complaint that Doe’s physician may not work at an AID-funded clinic if she or he performs or actively promotes abortion at a facility unrelated to the AID-funded clinic. Indeed, the Standard Clause specifically exempts such independent acts from its conditions: Action by an individual acting in the individual’s capacity shall not be attributed to an [NGO] with which the individual is associated, provided that the [NGO] neither endorses nor provides financial support for the action and takes reasonable steps to ensure that the individual does not improperly represent that the individual is acting on behalf of the [NGO]. Standard Clause ¶ (d)(10)(iii)(C). Because the Standard Clause does not implicate the questions left unanswered in Reproductive Health, McRae, and New York v. Sullivan, we also leave the issue for another day. Having found no constitutional rights implicated here, we do not address the government’s arguments concerning standing. See Intercommunity Center for Justice and Peace v. INS, 910 F.2d 42, 46 (2d Cir.1990). CONCLUSION The judgment of the district court is affirmed. . Plaintiffs-appellants also alleged that the Standard Clause was adopted in violation of AID’s statutory authority. The district court dismissed the statutory claims, Planned Parenthood Fed’n of Am., Inc. v. Agency for Int’l Dev., 670 F.Supp. 538, 542-45 (S.D.N.Y.1987), and we affirmed the dismissal of those claims in Planned Parenthood I, 838 F.2d at 654-55." }, { "docid": "22116566", "title": "", "text": "Mo. 1987). These provisions included the preamble, § 1.205; the “informed consent” provision, which re quired physicians to inform the pregnant woman of certain facts before performing an abortion, § 188.039; the requirement that post-16-week abortions be performed only in hospitals, § 188.025; the mandated tests to determine viability, § 188.029; and the prohibition on the use of public funds, employees, and facilities to perform or assist nontherapeutic abortions, and the restrictions on the use of public funds, employees, and facilities to encourage or counsel women to have such abortions, §§188.205, 188.210, 188.215. Id., at 430. The Court of Appeals for the Eighth Circuit affirmed, with one exception not relevant to this appeal. 851 F. 2d 1071 (1988). The Court of Appeals determined that Missouri’s declaration that life begins at conception was “simply an impermissible state adoption of a theory of when life begins to justify its abortion regulations.” Id., at 1076. Relying on Colautti v. Franklin, 439 U. S. 379, 388-389 (1979), it further held that the requirement that physicians perform viability tests was an unconstitutional legislative intrusion on a matter of medical skill and judgment. 851 F. 2d, at 1074-1075. The Court of Appeals invalidated Missouri’s prohibition on the use of public facilities and employees to perform or assist abortions not necessary to save the mother’s life. Id., at 1081-1083. It distinguished our decisions in Harris v. McRae, 448 U. S. 297 (1980), and Maher v. Roe, 432 U. S. 464 (1977), on the ground that “‘[tjhere is a fundamental difference between providing direct funding to effect the abortion decision and allowing staff physicians to perform abortions at an existing publicly owned hospital.’” 851 F. 2d, at 1081, quoting Nyberg v. City of Virginia, 667 F. 2d 754, 758 (CA8 1982), appeal dism’d, 462 U. S. 1125 (1983). The Court of Appeals struck down the provision prohibiting the use of public funds for “encouraging or counseling” women to have nontherapeutic abortions, for the reason that this provision was both overly vague and inconsistent with the right to an abortion enunciated in Roe v. Wade. 851 F. 2d, at" }, { "docid": "21607235", "title": "", "text": "MINER, Circuit Judge: Plaintiffs-appellants Planned Parenthood Federation of America, Inc. (“Planned Parenthood”), Planned Parenthood Center of El Paso, Stewart R. Mott, Stephen L. Isaacs, Sosamma Lindsay and Jane Doe appeal from a judgment entered in the United States District Court for the Southern District of New York (Walker, C.J., sitting by designation) dismissing the complaint in this action for failure to state a claim upon which relief may be granted. See Planned Parenthood Fed’n of Am., Inc. v. Agency for Int’l Dev., No. 87 Civ. 0248 (JMW) (S.D.N.Y. Mar. 7, 1990) (1990 WL 26306; 1990 U.S. Dist. LEXIS 2430). Plaintiffs-appellants contend that the implementation of an executive branch policy by the Agency for International Development (“AID”) restricting federal assistance to foreign nongovernmental family planning organizations violates their constitutional rights to speech, association and privacy. The district court, considering the claims on remand from our decision in Planned Parenthood Fed’n of Am., Inc. v. Agency for Int’l Dev., 838 F.2d 649 (2d Cir.1988) (Planned Parenthood I), upheld AID’s conditions on funding for foreign nongovernmental organizations as the least restrictive means of implementing a non-justiciable foreign policy decision. For the reasons that follow, we affirm. BACKGROUND Familiarity with our decision in Planned Parenthood I is presumed, and we restate only those facts relevant to this appeal. The Foreign Assistance Act of 1961, 22 U.S.C. §§ 2151-2429a (1988), authorizes the President “to furnish assistance, on such terms and conditions as he may determine, for voluntary population planning.” 22 U.S.C. § 2151b(b). The President’s policy concerning such assistance was announced in an August 1984 statement at a United Nations conference on population planning in Mexico City. The statement provides in pertinent part: [T]he United States does not consider abortion an acceptable element of family planning programs and will no longer contribute to those of which it is a part. Accordingly, when dealing with nations which support abortion with funds not provided by the United States Government, the United States will contribute to such nations through segregated accounts which cannot be used for abortion. Moreover, the United States will no longer contribute to separate nongovernmental" }, { "docid": "7102743", "title": "", "text": "at the College of Nursing includes teaching about abortion in accordance with her personal views and the ethics of the nursing profession. Appellant Isaacs is the Director of the Development Law and Policy Program of the Center for Population and Family Health at Columbia University; Isaacs intends to assist foreign public policy groups, many of which receive AID funds, on studies of their nations’ abortion laws and the effects of illegal abortions. Isaacs plans to work with those groups toward the reform of restrictive abortion laws by lobbying and public information efforts in their countries. Appellant Ramos is Director of Research and Special Projects of a private organization in Mexico that receives AID funds, and he often speaks on the subject of abortion. Appellant Mott works with organizations, including Planned Parenthood, to ensure that women in less developed countries may choose to have a safe, legal abortion. Appellant Doe is a patient in a medical center in Nigeria that receives AID funds, and who relies on that hospital for gynecological and obstetric advice and care. All of the individual plaintiffs are United States citizens. In January 1987, Planned Parenthood and the other plaintiffs-appellants brought this action on behalf of themselves and others similarly situated, seeking 1) a declaration that the AID requirement that recipients of federal family planning funds agree not to perform or actively promote abortions is invalid and unenforceable; 2) an injunction barring AID’s use of the Standard Clause as a condition to family planning funds; and 3) an injunction requiring AID to consider Planned Parenthood’s application for family planning funds without regard to its position on abortion. Appellants contend that the Statement is inconsistent with 22 U.S.C. §§ 2151(a) and 2151u(a) and, therefore, the President lacks the authority to adopt and implement the Statement. Appellants also assert that when Congress prohibited the use of federal funds for certain abortion-related activities, see 22 U.S.C. § 2151b(f)(l), (3), it precluded the imposition of restrictions on non-federal funds in the area of abortion-related activities. Defendants moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) on the grounds that the statutory claims" }, { "docid": "21607252", "title": "", "text": "restrictive than the Standard Clause, such accounts would not advance the policy that the United States will “withhold federal assistance from foreign nongovernmental organizations (“NGOs”) that perform or actively promote abortions, even if those activities are financed with non-federal funds.\" Planned Parenthood I, 838 F.2d at 651 (emphasis added); see also Mexico City Statement at 5. Plaintiffs-appellants do not suggest any manner of limiting AID’s implementation that is consistent with the policy enunciated in the Mexico City Statement. The Standard Clause goes no further than necessary to implement an otherwise nonjusticiable decision limiting the class of beneficiaries of foreign aid, and any burden on plaintiffs-appellants’ rights is incidental to that policy decision. We therefore affirm the dismissal of plaintiffs-appellants’ first amendment claims. As to the privacy claim asserted by plaintiff-appellant Doe, the district court repeated the analysis applied to the first amendment claims and found that the Standard Clause erected no affirmative obstacles to Doe’s ability to obtain abortion-related advice. Planned Parenthood, 1990 WL 26306 at *8-9, 1990 U.S. Dist. LEXIS 2430 at *25-26. Doe contends that this holding is inconsistent with dicta in Webster v. Reproductive Health Services, — U.S. -, 109 S.Ct. 3040, 3052 n. 8, 106 L.Ed.2d 410 (1989), and New York v. Sullivan, 889 F.2d at 413-14. In Reproductive Health, the Court upheld prohibitions on, inter alia, the use of public facilities for abortions not necessary to save the mother’s life and the use of public funds, employees or facilities for the purpose of encouraging or counseling abortion when not necessary to save the mother’s life. 109 S.Ct. at 3042-43. But the Court questioned whether a different result would be required “if the State barred doctors who performed abortions in private facilities from the use of public facilities for any purpose.” Id. at 3052 n. 8; accord New York v. Sullivan, 889 F.2d at 413-14. The Court cited McRae for this cautionary note, in which it had suggested, also in dicta, that a legitimate refusal to subsidize abortions might be transformed into an unconstitutional penalty “if Congress had attempted to withhold all Medicaid benefits from an" }, { "docid": "21607241", "title": "", "text": "from teaching a curriculum relating to the availability and benefits of abortion and that her first amendment right to speak out on family planning issues would be restricted accordingly. Plaintiff-appellant Jane Doe, an American citizen who lives in Nigeria, sues individually and as representative of a class of women who rely for family planning advice on foreign NGOs subject to the terms and conditions of the Standard Clause. She contends that the Standard Clause prevents her and others similarly situated from receiving “full and accurate medical information and advice about family planning and abortion” from foreign NGOs that receive funding from AID. The district court initially dismissed the constitutional challenges to the Standard Clause as nonjusticiable because they were “targeted not merely at a method or means of implementation of a foreign policy, but at the foreign policy itself.” Planned Parenthood, 670 F.Supp. at 547. In Planned Parenthood I, we agreed that the policy itself was not justiciable, but we reversed and directed the district court to consider on remand “ ‘the legality of AID’s implementation of the [Statement].’ ” 838 F.2d at 656 (quoting DKT Memorial Fund, Ltd. v. Agency for Int’l Dev., 810 F.2d 1236, 1238 (D.C.Cir.1987)). Complying with that directive, the district court examined the Standard Clause, determined that AID has chosen the least restrictive means to implement an otherwise unreviewable policy, and dismissed the complaint. Planned Parenthood, 1990 WL 26306 at *7, 1990 U.S. Dist. LEXIS 2430 at *20. The district court applied the deferential standard of review described in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), because it found that any impact on plaintiffs’ speech was incidental to the restrictions on foreign NGOs mandated by the foreign policy iden tified in the first appeal. The court held that AID’s implementing mechanism, the Standard Clause, (1) was “within the statutory and constitutional power of the government”; (2) “advance[d] a substantial governmental foreign policy interest”; and (3) that the “incidental intrusion on the rights of domestic NGOs is ‘no greater than is essential to the furtherance of the [government’s] interest.’" }, { "docid": "21607247", "title": "", "text": "Clause does not prohibit plaintiffs-appellants from exercising their first amendment rights. Plaintiffs-appellants may use their own funds to pursue whatever abortion-related activities they wish in foreign countries. Indeed, the Standard Clause permits Planned Parenthood to grant AID funds to a foreign NGO for all aspects of family planning except abortion and to use its own funds to establish an abortion-related facility next door. The harm alleged in the complaint is the result of choices made by foreign NGOs to take AID’s money rather than engage in non-AID funded cooperative efforts with plaintiffs-appellants. Such an incidental effect from the refusal to subsidize the exercise of a constitutional right obviously is not what the Supreme Court considers an “obstacle in the path” of plaintiffs seeking to exercise the right. The Court upheld the refusal to subsidize striking workers with food stamps in Lyng v. International Union, even though “[djenying such benefits makes it harder for strikers to maintain themselves and their families during the strike and exerts pressure on them to abandon their union.” 485 U.S. at 368, 108 S.Ct. at 1190. In McRae, the Court upheld the government’s refusal to subsidize abortion-related medical expenses, despite its finding that the policy “of unequal subsidization of abortion and other medical services [] encourages alternative activity deemed in the public interest.” 448 U.S. at 315, 100 S.Ct. at 2687; see also Maher, 432 U.S. at 474, 97 S.Ct. at 2383 (recognizing that refusal to subsidize abortion-related expenses “may make it difficult — and in some cases, perhaps, impossible — for some women to have abortions”). The effect of the Standard Clause on plaintiffs-appellants simply is not comparable to the prohibitions on speech in Boos and Eichman, the prior restraint of the Pentagon Papers in New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam), or the censorship by means of intimidation and threats of criminal prosecution in Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64, 83 S.Ct. 631, 636, 9 L.Ed.2d 584 (1963). Plaintiffs-appellants’ reliance on these cases is therefore without merit. Planned Parenthood’s" }, { "docid": "22116580", "title": "", "text": "has done.” Id., at 521. Thus we uphold the Act’s restrictions on the use of public employees and facilities for the performance or assistance of nontherapeutic abortions. C The Missouri Act contains three provisions relating to “encouraging or counseling a woman to have an abortion not necessary to save her life.” Section 188.205 states that no public funds can be used for this purpose; § 188.210 states that public employees cannot, within the scope of their employment, engage in such speech; and §188.215 forbids such speech in public facilities. The Court of Appeals did not consider § 188.205 separately from §§ 188.210 and 188.215. It held that all three of these provisions were unconstitutionally vague, and that “the ban on using public funds, employees, and facilities to encourage or counsel a woman to have an abortion is an unacceptable infringement of the woman’s fourteenth amendment right to choose an abortion after receiving the medical information necessary to exercise the right knowingly and intelligently.” 851 F. 2d, at 1079. Missouri has chosen only to appeal the Court of Appeals’ invalidation of the public funding provision, § 188.205. See Juris. Statement i-ii. A threshold question is whether this, provision reaches primary conduct, or whether it is simply an instruction to the State’s fiscal officers not to allocate funds for abortion counseling. We accept, for purposes of decision, the State’s claim that § 188.205 “is not directed at the conduct of any physician or health care provider, private or public,” but “is directed solely at those persons responsible for expending public funds.” Brief for Appellants 43. Appellees contend that they are not “adversely” affected under the State’s interpretation of § 188.205, and therefore that there is no longer a case or controversy before us on this question. Brief for Appellees 31-32. Plaintiffs are masters of their complaints and remain so at the appellate stage of a litigation. See Caterpillar Inc. v. Williams, 482 U. S. 386, 398-399 (1987). A majority of the Court agrees with appel-lees that the controversy over § 188.205 is now moot, because appellees’ argument amounts to a decision to" }, { "docid": "22116567", "title": "", "text": "an unconstitutional legislative intrusion on a matter of medical skill and judgment. 851 F. 2d, at 1074-1075. The Court of Appeals invalidated Missouri’s prohibition on the use of public facilities and employees to perform or assist abortions not necessary to save the mother’s life. Id., at 1081-1083. It distinguished our decisions in Harris v. McRae, 448 U. S. 297 (1980), and Maher v. Roe, 432 U. S. 464 (1977), on the ground that “‘[tjhere is a fundamental difference between providing direct funding to effect the abortion decision and allowing staff physicians to perform abortions at an existing publicly owned hospital.’” 851 F. 2d, at 1081, quoting Nyberg v. City of Virginia, 667 F. 2d 754, 758 (CA8 1982), appeal dism’d, 462 U. S. 1125 (1983). The Court of Appeals struck down the provision prohibiting the use of public funds for “encouraging or counseling” women to have nontherapeutic abortions, for the reason that this provision was both overly vague and inconsistent with the right to an abortion enunciated in Roe v. Wade. 851 F. 2d, at 1077-1080. The court also invalidated the hospitaliza tion requirement for 16-week abortions, id., at 1073-1074, and the prohibition on the use of public employees and facilities for abortion counseling, id., at 1077-1080, but the State has not appealed those parts of the judgment below. See Juris. Statement i-ii. II Decision of this case requires us to address four sections of the Missouri Act: (a) the preamble; (b) the prohibition on the use of public facilities or employees to perform abortions; (c) the prohibition on public funding of abortion counseling; and (d) the requirement that physicians conduct viability tests prior to performing abortions. We address these seriatim. A The Act’s preamble, as noted, sets forth “findings” by the Missouri Legislature that “[t]he life of each human being begins at conception,” and that “[ujnborn children have pro-tectable interests in life, health, and well-being.” Mo. Rev. Stat. §§1.205.1(1), (2) (1986). The Act then mandates that state laws be interpreted to provide unborn children with “all the rights, privileges, and immunities available to other persons, citizens, and residents of" }, { "docid": "21607248", "title": "", "text": "368, 108 S.Ct. at 1190. In McRae, the Court upheld the government’s refusal to subsidize abortion-related medical expenses, despite its finding that the policy “of unequal subsidization of abortion and other medical services [] encourages alternative activity deemed in the public interest.” 448 U.S. at 315, 100 S.Ct. at 2687; see also Maher, 432 U.S. at 474, 97 S.Ct. at 2383 (recognizing that refusal to subsidize abortion-related expenses “may make it difficult — and in some cases, perhaps, impossible — for some women to have abortions”). The effect of the Standard Clause on plaintiffs-appellants simply is not comparable to the prohibitions on speech in Boos and Eichman, the prior restraint of the Pentagon Papers in New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam), or the censorship by means of intimidation and threats of criminal prosecution in Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64, 83 S.Ct. 631, 636, 9 L.Ed.2d 584 (1963). Plaintiffs-appellants’ reliance on these cases is therefore without merit. Planned Parenthood’s assertion that the Standard Clause imposes an unconstitutional condition on the receipt of an important government benefit, see, e.g., Sindermann, 408 U.S. at 597, 92 S.Ct. at 2697, must fail for similar reasons. In Sindermann, the plaintiff was forced to choose between his employment and his right to freedom of speech. See id. at 598, 92 S.Ct. at 2698. No such choice is imposed upon Planned Parenthood here. Planned Parenthood may continue to participate as a conduit for AID funds that are restricted to non-abortion activities while maintaining with its own funds abortion-related activities in the same countries. Similarly, the Standard Clause does not prevent Planned Parenthood Center of El Paso, Stewart R. Mott, Stephen L. Isaacs, or the class represented by Sosamma Lindsay from pursuing abortion-related activities abroad with non-AID funds. The voluntary population planning program at issue in this case provides a government subsidy for foreign family planning programs. The President, acting pursuant to his authority under the Foreign Assistance Act, has determined that the government will not subsidize “separate nongovernmental organizations which" }, { "docid": "21607253", "title": "", "text": "contends that this holding is inconsistent with dicta in Webster v. Reproductive Health Services, — U.S. -, 109 S.Ct. 3040, 3052 n. 8, 106 L.Ed.2d 410 (1989), and New York v. Sullivan, 889 F.2d at 413-14. In Reproductive Health, the Court upheld prohibitions on, inter alia, the use of public facilities for abortions not necessary to save the mother’s life and the use of public funds, employees or facilities for the purpose of encouraging or counseling abortion when not necessary to save the mother’s life. 109 S.Ct. at 3042-43. But the Court questioned whether a different result would be required “if the State barred doctors who performed abortions in private facilities from the use of public facilities for any purpose.” Id. at 3052 n. 8; accord New York v. Sullivan, 889 F.2d at 413-14. The Court cited McRae for this cautionary note, in which it had suggested, also in dicta, that a legitimate refusal to subsidize abortions might be transformed into an unconstitutional penalty “if Congress had attempted to withhold all Medicaid benefits from an otherwise eligible candidate simply because that candidate had exercised her constitutionally protected freedom to terminate her pregnancy by abortion.” 448 U.S. at 317 n. 19, 100 S.Ct. at 2688 n. 19. The district court properly found that the Standard Clause imposes no such “penalty.” There is no allegation in the complaint that Doe will lose her ability to go to an AID-funded clinic if she “exercise[s] her constitutionally protected freedom to terminate her pregnancy by abortion” at a facility unrelated to the clinic. Id. Nor is there any allegation in the complaint that Doe’s physician may not work at an AID-funded clinic if she or he performs or actively promotes abortion at a facility unrelated to the AID-funded clinic. Indeed, the Standard Clause specifically exempts such independent acts from its conditions: Action by an individual acting in the individual’s capacity shall not be attributed to an [NGO] with which the individual is associated, provided that the [NGO] neither endorses nor provides financial support for the action and takes reasonable steps to ensure that the individual" }, { "docid": "21607242", "title": "", "text": "implementation of the [Statement].’ ” 838 F.2d at 656 (quoting DKT Memorial Fund, Ltd. v. Agency for Int’l Dev., 810 F.2d 1236, 1238 (D.C.Cir.1987)). Complying with that directive, the district court examined the Standard Clause, determined that AID has chosen the least restrictive means to implement an otherwise unreviewable policy, and dismissed the complaint. Planned Parenthood, 1990 WL 26306 at *7, 1990 U.S. Dist. LEXIS 2430 at *20. The district court applied the deferential standard of review described in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), because it found that any impact on plaintiffs’ speech was incidental to the restrictions on foreign NGOs mandated by the foreign policy iden tified in the first appeal. The court held that AID’s implementing mechanism, the Standard Clause, (1) was “within the statutory and constitutional power of the government”; (2) “advance[d] a substantial governmental foreign policy interest”; and (3) that the “incidental intrusion on the rights of domestic NGOs is ‘no greater than is essential to the furtherance of the [government’s] interest.’ ” Planned Parenthood, 1990 WL 26306 at *8, 1990 U.S. Dist. LEXIS 2430 at *24 (quoting O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679). The court found that the direct, viewpoint-based restrictions on foreign NGOs did not preclude application of the O’Brien test because “[t]he government may, as a matter of its foreign policy choices, discriminate on the basis of its political views in deciding which foreign governments and NGOs will further United States interests and one vehicle it may employ in doing so is its power to grant foreign assistance.” Id., 1990 WL 26306 at *6, 1990 U.S. Dist. LEXIS 2430 at *18. The court also dismissed Doe’s privacy claim, finding that the Standard Clause was not an “ ‘affirmative legal obstacle to abortion services’ ” and that its “ ‘practical effect ... on the availability of abortion services is constitutionally irrelevant.’ ” Id., 1990 WL 26306 at *8, 1990 U.S. Dist. LEXIS 2430 at *25 (quoting New York v. Sullivan, 889 F.2d 401, 411 (2d Cir.1989), cert. granted, — U.S. -, 110" }, { "docid": "21607250", "title": "", "text": "perform or actively promote abortion as a method of family planning in other nations.” Mexico City Statement at 5. As we held in Planned Parenthood I, 838 F.2d at 655, the wisdom of, and motivation behind, this policy are not justiciable issues. See also Buckley, 424 U.S. at 91, 96 S.Ct. at 669; DKT Memorial Fund, 810 F.2d at 1238. Were the courts to allow challenges to foreign aid programs on the ground that the government’s subsidy of a particular viewpoint abroad encourages the foreign recipients of American aid not to speak or associate with Americans opposed to that viewpoint, the political branches would find it impossible to conduct foreign policy. A holding in favor of plaintiffs-appellants in this case would open the possibility of at tacks by white supremacists on the policy of the United States with respect to ending apartheid, see 22 U.S.C. §§ 5001-5117, a policy that involves not merely financial incentives for a particular viewpoint but coercive sanctions, see, e.g., 22 U.S.C. § 5081. Opponents of American foreign policy pertaining to international terrorism could contest restrictions on aid to “entities associated with” the Palestinian Liberation Organization, see 22 U.S.C. § 2227. Plaintiffs-appellants have not proposed any means of distinguishing between the Mexico City Statement and these other policies directed at non-citizens that have an incidental impact on the first amendment rights of citizens. AID’s implementation of the executive branch’s decision to restrict the class of foreign beneficiaries of American assistance must be upheld if rationally related to the policy goal. See, e.g., International Union, 485 U.S. at 365-66, 108 S.Ct. at 1189; Taxation With Representation, 461 U.S. at 548, 103 S.Ct. at 2002. The district court found that the Standard Clause is narrowly tailored and does not diverge from what is required by the Mexico City Statement. Planned Parenthood, 1990 WL 26306 at *7, 1990 U.S. Dist. LEXIS 2430 at *20. Plaintiffs-appellants contend that AID could authorize the use of segregated accounts to allow foreign NGOs to accept restricted funds from AID while expending their own funds for abortion-related activities. While segregated accounts would be less" }, { "docid": "21607246", "title": "", "text": "U.S. at 94-95, 96 S.Ct. at 670-71. Plaintiffs-appellants contend that the Standard Clause places obstacles in the path of their exercise of first amendment rights and therefore must be subjected to strict scrutiny. They allege that it is impractical for United States citizens or organizations to engage in abortion-related activities abroad without the cooperation of foreign organizations and that the Standard Clause deters “many of the most logical and effective foreign partners.” By conditioning AID funding of foreign NGOs on complete disassociation with abortion-related activities, they contend AID “picks off or buys up” foreign NGOs that otherwise would participate with plaintiffs-appellants in abortion-related activities. See DKT Memorial Fund Ltd. v. AID, 887 F.2d 275, 300 (D.C.Cir.1989) (Ginsburg, R., J., dissenting). However, unlike statutes imposing criminal penalties for those who burn the American flag, see United States v. Eichman, — U.S. -, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990), or prohibiting the display of certain signs in front of embassies, see Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988), the Standard Clause does not prohibit plaintiffs-appellants from exercising their first amendment rights. Plaintiffs-appellants may use their own funds to pursue whatever abortion-related activities they wish in foreign countries. Indeed, the Standard Clause permits Planned Parenthood to grant AID funds to a foreign NGO for all aspects of family planning except abortion and to use its own funds to establish an abortion-related facility next door. The harm alleged in the complaint is the result of choices made by foreign NGOs to take AID’s money rather than engage in non-AID funded cooperative efforts with plaintiffs-appellants. Such an incidental effect from the refusal to subsidize the exercise of a constitutional right obviously is not what the Supreme Court considers an “obstacle in the path” of plaintiffs seeking to exercise the right. The Court upheld the refusal to subsidize striking workers with food stamps in Lyng v. International Union, even though “[djenying such benefits makes it harder for strikers to maintain themselves and their families during the strike and exerts pressure on them to abandon their union.” 485 U.S. at" } ]

[ { "docid": "18484004", "title": "", "text": "under section 20(a), plaintiffs must allege: (1) an underlying primary violation of the securities laws by the controlled person; (2) control over the controlled person; and (3) that the controlling person was in some meaningful sense a culpable participant in the controlled person’s primary violation. See In re Livent, Inc. Noteholders Sec. Litig., 151 F.Supp.2d 371, 413-17 (S.D.N.Y.2001); Gabriel Capital, 122 F.Supp.2d at 426. The law is less clear, however, as to the requirements of a prima facie case under section 15. Several courts in this Circuit have not required a showing of culpable participation, but have required only a showing of control over the controlled person. See, e.g., Silva Run Worldwide Ltd. v. Gaming Lottery Corp., No. 96 Civ. 3231, 2001 WL 396521, at *3 (S.D.N.Y. Apr.19, 2001); Dorchester Investors v. Peak Int’l Ltd., 134 F.Supp.2d 569, 580-81 (S.D.N.Y.2001); Twinlab Corp., 103 F.Supp.2d at 207-08; Degulis v. LXR Biotechnology, Inc., 928 F.Supp. 1301, 1315 (S.D.N.Y.1996). Other courts in this Circuit have applied the section 20(a) analysis to section 15 claims and have required a showing of culpability. See, e.g., Demaria v. Andersen, 153 F.Supp.8d 300, 313 (S.D.N.Y.2001); American Bank Note Holographies, 93 F.Supp.2d at 441; Ellison v. American Image Motor Co., Inc., 36 F.Supp.2d 628, 637-38 (S.D.N.Y.1999). As previously noted, claims under sections 11 and (12)(a)(2) of the Securities Act sound in strict liability and do not require knowledge of the misrepresentations. The concept of culpability is therefore inapposite. See Twinlab Corp., 103 F.Supp.2d at 207-08. Instead, to plead control person liability under the Securities Act, it is sufficient to allege an underlying primary violation of the Securities Act and control over the controlled person. See Degulis, 928 F.Supp. at 1315. 1. Application to DLJ Inc. DLJ Inc. first argues that plaintiffs have not adequately pled that it is a control person. See Underwriter Def. Mem. at 24. “Control over a primary violator may be established by showing that the defendant possessed ‘the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.’" } ]

[ { "docid": "4223029", "title": "", "text": "as pleaded, Plaintiffs’ reliance allegations are insufficient. Pursuant to the language of Section 18, Plaintiffs must allege that they personally read specific actionable misstatements in MMC filings covered by Section 18, and then purchased or sold securities in reliance on those misstatements. 15 U.S.C. § 78r. As Plaintiffs fail to make this pleading, the Section 18 claim is dismissed against all defendants. D. Control Person Claims: Section 15 and Section 20(a) Both Section 20(a) of the Exchange Act and Section 15 of the Securities Act create secondary liability for persons who control primary violators of the provisions of those Acts. Courts in this District routinely examine Section 15 claims under the standard applied to Section 20(a) claims. See DeMaria v. Andersen, 153 F.Supp.2d 300, 314 (S.D.N.Y.2001), aff'd 318 F.3d 170 (2d Cir.2003); In re Am. Bank Note Holographies, Inc. Sec. Litig., 93 F.Supp.2d 424, 441 (S.D.N.Y.2000). On the face of each statute, Section 20(a) and Section 15 have entirely different mens rea requirements: Section 20(a) provides a good faith defense, while Section 15 liability attaches on the basis of mere negligence. As such, it initially seems counterintuitive to use the.same framework to consider the two provisions. Yet, in this case, Plaintiffs’ Section 11 claims are premised on allegations of fraud. See supra Part TV.B. It follows from Rombach’s heightened pleading requirements for Section 11 violations sounding in fraud that the pleading requirements for the corresponding control person claim are also greater. As such, analysis of the two types of control person claims will proceed in parallel. To establish a prima facie case of a control person claim, Plaintiffs must allege: (1) an underlying primary violation; (2) the defendant’s control over the primary violator; and (3) the defendant’s culpable participation in the primary violation. See supra Parts IV.A.1 & B, Plaintiffs adequately plead primary violations of Section 11 by MMC, and Section 10(b) by MMC, Marsh, and, for a limited period, Green-berg and Egan. Accordingly, the focus is on Defendants’ control and culpable participation of these primary violators. The Second Circuit has only briefly addressed the control and culpable participation prongs," }, { "docid": "2419325", "title": "", "text": "can be granted, the Court has denied their motion. Accordingly, the Court denies the motion by Shalek to dismiss the Section 15 and Section 20(a) claims on the ground that the Second Amended Complaint fails to plead primary violations. Pace’s assertion, that the claims of control person liability should be dismissed because the plaintiffs fail to allege his culpable participation in the fraud, constitutes a challenge only to the Section 20(a) claims. As noted above, the concept of culpability is inapplicable to Section 15 claims. Thus, to the extent that Pace moves to dismiss the claims brought pursuant to Section 15, that request is denied. See In re CINAR Corp., 186 F.Supp.2d at 310; In re Indep. Energy Holdings, 154 F.Supp.2d at 753-54; In re Twinlab, 103 F.Supp.2d at 208. Further, the Court finds that the allegations regarding Pace’s participation in the alleged fraud are sufficient to withstand a motion to dismiss the Second Amended Complaint. The plaintiffs allege that Pace exercised secret control over Sterling Foster; provided Lieberman with capital for Sterling Foster’s operations; supervised Sterling Foster’s business activities, including setting Lieberman’s salary; and secretly received a portion of Sterling Foster’s profits (complaint ¶ 41). The Second Amended Complaint also asserts that Pace engaged in deceptive and manipulative sales practices in selling the Issuer Defendants’ securities (complaint ¶ 69). The plaintiffs claim that Pace determined which offerings Sterling Foster would underwrite and dictated the number of shares to be registered, the offering price, and the lawyers and accountants selected to work on the underwritings (complaint ¶ 75). The plaintiffs also charge Pace, and others, with disseminating materially false and misleading prospectuses for Advanced Voice, Com/Tech, and Applewoods (complaint ¶¶ 82, 100, 123). In addition, the complaint alleges that Pace was a party to the secret agreements by which Sterling Foster would release and purchase the shares owned by the Selling Securityhold-ers (complaint ¶¶ 96,122, 131,142). The Court finds that these allegations, taken together, are sufficient to demonstrate that Pace was in some meaningful sense a culpable participant in the scheme. See Suez Equity Investors, 250 F.3d at 101. Accordingly," }, { "docid": "15647128", "title": "", "text": "“control persons” under Section 20(a) of the Exchange Act. Control-person liability under Section 20(a) must be predicated upon an independent, primary violation of the Exchange Act or any rules and regulations promulgated thereunder. 15 U.S.C. § 78t-l(a). Thus, where there is no primary violation of the Exchange Act, there may can be no violation of Section 20(a). In re Alpharma, 372 F.3d at 153 (“If no controlled person is liable, there can be no controlling person liability.”) (quoting Shapiro v. UJB Fin. Corp., 964 F.2d 272, 279 (3d Cir.1992)). Because Plaintiff has failed to plead sufficiently a violation of Section 10(b) or Rule 10b-5, Defendants’ motion to dismiss the Section 20(b) claim must be granted. See In re Milestone Scientific Sec. Litig., 103 F.Supp.2d 425, 474 (D.N.J.2000). III. CONCLUSION For the foregoing reasons, Defendants’ motion to dismiss is hereby GRANTED. Pursuant to Federal Rule of Civil Procedure 12(b)(6) and Section 21D(b)(3)(A) of the PSLRA, 15 U.S.C. § 78u-4(b)(3)(A), the Court hereby DISMISSES Plaintiffs Consolidated Amended Class Action Complaint WITHOUT PREJUDICE. Plaintiff shall have thirty (30) days from the date of entry of this Order to file a second consolidated amended class action complaint. . On June 23, 2003, BTG changed its name to Savient Pharmaceuticals, Inc. For simplicity, this Opinion and Order will refer throughout to BTG, the Defendant entity's name during the Class Period. . \"An unqualified opinion, the most favorable report an auditor may give, represents the auditor’s finding that the company’s financial statements fairly present the financial position of the company, the results of its operations, and the changes in its financial position for the period under audit, in conformity with consistently applied generally accepted accounting principles.” In re WorldCom, Inc. Sec. Litig., 346 F.Supp.2d 628, 643 n. 17 (S.D.N.Y.2004) (quoting United States v. Arthur Young & Co., 465 U.S. 805, 818 n. 13, 104 S.Ct. 1495, 79 L.Ed.2d 826 (1984)). .The executive officers named as defendants are Sim Fass, BTG's Chairman of the Board of Directors and Chief Executive Officer during the Class Period; Yehuda Sternlicht, BTG’s Vice President-Finance and Chief Financial Officer from the beginning" }, { "docid": "4500959", "title": "", "text": "566, 66 L.Ed.2d 469 (1980) (culpable conduct not required to be pleaded for control person liability). Therefore, at least as it relates to the Plaintiffs’ cause of action against Twinlab’s officers as control persons under Section 20(a) of the Exchange Act, the Court holds that the complaint must allege facts demonstrating culpable conduct. The complaint contains no such allegations. In the Fifth Cause of Action, the Plaintiffs allege that the individual officers of Twinlab had access to and knowledge of Twinlab’s operational and financial information, and the ability to prevent the issuance of the statements alleged to be fraudulent. However, the Plaintiffs do not specifically allege facts demonstrating that the officers of Twinlab culpably participated in the scheme, rather than, for example, unknowingly approving credible but fraudulent financial reports prepared by subordinates. In the absence of facts demonstrating culpability, the Fifth Cause of Action alleging control person liability against Defendants Dean and Ross Blech-man and John McCusker must be dismissed. Generally, examination of control person liability under the Securities Act is governed by the same analysis as that used for control person liability under the Exchange Act. Ellison v. American Image Motor Co., 36 F.Supp.2d 628, 638-39 (S.D.N.Y.1999). However, as discussed above, claims under Sections 11 and 12 of the Securities Act sound in strict liability and do not require knowledge by the defendants of the misrepresentations. Thus, the concept of culpability would not apply. Instead, to plead control person liability under the Securities Act, it is sufficient merely to demonstrate that the individual defendants controlled an entity that violated the securities laws. Degulis v. LXR Biotechnology, Inc., 928 F.Supp. 1301, 1315 (S.D.N.Y.1996). The SEC defines a control person as one having “the possession, direct[ly] or indirect[ly], of the power to direct or cause the direction of management and policies of a person, whether through the ownership of voting securities or otherwise.” 17 C.F.R. § 240.12b-2; 17 C.F.R. § 230.405; S.E.C. v. First Jersey Securities, 101 F.3d 1450, 1472-73 (2d Cir. 1996). The complaint is sufficient to allege control person liability against the individual defendants for the Securities Act violations." }, { "docid": "23568162", "title": "", "text": "Kaplan, 159 F.3d 715, 720 (2d Cir.1998) (quoting First Jersey, 101 F.3d at 1472). Defendants argue that Plaintiffs have failed to adequately plead the elements of control and culpable participation (and, of course, that there was no underlying violation of the Exchange Act). See Iss. Mem. at 60-65. “Control” in Section 20 has the same meaning as in Section 15, and has been adequately alleged. See supra Part IX. See also 17 C.F.R. § 240.12b-2 (defining control as “the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.”). The Rule 10b-5 claims against Issuers, who are identified in the Section 20 claims as the primary violators, have been adequately pled. See supra Part X and Part B of Appendix 5 to this Opinion. Thus the critical question is what is meant by “culpable participation”' — a term that does not appear anywhere in Section 20(a). Because some courts have assumed that “culpable participation” requires proof of a certain state of mind, they have held that plaintiffs must plead scienter under paragraph (b)(2) of the PSLRA. See, e.g., In re CINAR Corp. Sec. Litig., 186 F.Supp.2d 279, 310 (E.D.N.Y.2002); Independent Energy, 154 F.Supp.2d at 770. This assumption has been made despite the fact that the Second Circuit has never defined “culpable participation” or equated that term with scienter. Given the reliance of courts on this assumption, it is interesting to trace the development of Section 20(a) jurisprudence in the Second Circuit. As early as 1973, the court wrote: The intent of Congress in adding [Section 20], passed at the same time as the amendment to Section 15 of the 1933 Act, was obviously to impose liability only on those directors who fall within its definition of control and who are in some meaningful sense culpable participants in the fraud perpetrated by controlled persons. Lanza v. Drexel & Co., 479 F.2d 1277, 1299 (2d Cir.1973) (en banc) (emphasis added). See also Gordon v. Burr, 506 F.2d 1080, 1086 (2d Cir.1974). In 1980, however, the Second" }, { "docid": "2419324", "title": "", "text": "liability under the Exchange Act. See In re Twinlab Corp. Sec. Litig., 103 F.Supp.2d 193, 208 (E.D.N.Y.2000). However, this Court has joined several other district courts in the Second Circuit in holding that the concept of culpability, the third requirement of a Section 20(a) violation, does not apply to a Section 15 violation because Sections 11 and 12 sound in strict liability and do not require knowledge by the defendants of the misrepresentations. In re Twinlab, 103 F.Supp.2d at 208; see In re CINAR Corp. Sec. Litig., 186 F.Supp.2d 279, 310 (E.D.N.Y.2002); In re Indep. Energy Holdings PLC Sec. Litig., 154 F.Supp.2d 741, 753-54 (S.D.N.Y.2001). Thus, to plead control person liability under the Securities Act, it is sufficient merely to show that the individual defendants controlled an entity that violated the securities laws. In re Twinlab, 103 F.Supp.2d at 209. To the extent that the Shalek defendants have moved to dismiss the claims brought pursuant to Sections 11 and 10(b) on the ground that the plaintiffs have failed to state a claim upon which relief can be granted, the Court has denied their motion. Accordingly, the Court denies the motion by Shalek to dismiss the Section 15 and Section 20(a) claims on the ground that the Second Amended Complaint fails to plead primary violations. Pace’s assertion, that the claims of control person liability should be dismissed because the plaintiffs fail to allege his culpable participation in the fraud, constitutes a challenge only to the Section 20(a) claims. As noted above, the concept of culpability is inapplicable to Section 15 claims. Thus, to the extent that Pace moves to dismiss the claims brought pursuant to Section 15, that request is denied. See In re CINAR Corp., 186 F.Supp.2d at 310; In re Indep. Energy Holdings, 154 F.Supp.2d at 753-54; In re Twinlab, 103 F.Supp.2d at 208. Further, the Court finds that the allegations regarding Pace’s participation in the alleged fraud are sufficient to withstand a motion to dismiss the Second Amended Complaint. The plaintiffs allege that Pace exercised secret control over Sterling Foster; provided Lieberman with capital for Sterling Foster’s operations;" }, { "docid": "2419323", "title": "", "text": "indirectly induce the act or acts constituting the violation or cause of action.” In order to establish a prima facie ease of liability under § 20(a), a plaintiff must show: (1) a primary violation by a controlled person; (2) control of the primary violator by the defendant; and (3) “that the controlling person was in some meaningful sense a culpable participant” in the primary violation. Boguslavsky v. Kaplan, 159 F.3d 715, 721 (2d Cir.1998); see Suez Equity Investors, L.P. v. Toronto-Dominion Bank, 250 F.3d 87, 101 (2d Cir.2001); SEC v. First Jersey Secs., Inc., 101 F.3d 1450, 1472 (2d Cir.1996). “Control over a primary violator may be established by showing that the defendant possessed ‘the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.’ ” First Jersey Secs., 101 F.3d at 1472-73 (quoting 17 C.F.R. § 240.12b-2). Examination of control person liability under the Securities Act is governed by the same analysis as that used for control person liability under the Exchange Act. See In re Twinlab Corp. Sec. Litig., 103 F.Supp.2d 193, 208 (E.D.N.Y.2000). However, this Court has joined several other district courts in the Second Circuit in holding that the concept of culpability, the third requirement of a Section 20(a) violation, does not apply to a Section 15 violation because Sections 11 and 12 sound in strict liability and do not require knowledge by the defendants of the misrepresentations. In re Twinlab, 103 F.Supp.2d at 208; see In re CINAR Corp. Sec. Litig., 186 F.Supp.2d 279, 310 (E.D.N.Y.2002); In re Indep. Energy Holdings PLC Sec. Litig., 154 F.Supp.2d 741, 753-54 (S.D.N.Y.2001). Thus, to plead control person liability under the Securities Act, it is sufficient merely to show that the individual defendants controlled an entity that violated the securities laws. In re Twinlab, 103 F.Supp.2d at 209. To the extent that the Shalek defendants have moved to dismiss the claims brought pursuant to Sections 11 and 10(b) on the ground that the plaintiffs have failed to state a claim upon which relief" }, { "docid": "2419321", "title": "", "text": "with fair notice of the claims against them. See DiVittorio, 822 F.2d at 1247. Thus, even applying a more lenient Rule 9(b) pleading standard on the ground that the allegations pertain to information within the peculiar knowledge of the defendants, the Court finds that the mere allegations that the Bear Stearns Defendants and Harriton made material omissions, without more, does not satisfy the pleading requirements of Rule 9(b) or the PSLRA. To hold otherwise would do little to prevent clearing brokers from becoming defendants in every securities fraud lawsuit. See AUSA Life Ins. v. Ernst & Young, 206 F.3d 202, 219 (2d Cir.2000) (stating that one of the three purposes of the PSLRA is to encourage defendants to fight abusive claims); DiVittorio, 822 F.2d at 1247 (holding that the purposes of the heightened pleading standards of Rule 9(b) include protecting the reputation and goodwill of defendants and preventing strike suits). Accordingly, the Court grants the motions by the Bear Stearns Defendants and Harriton to dismiss the claims of fraud for failure to plead with sufficient particularity, and claim 31 is dismissed as against those defendants. 6. Control Person Liability Pace and Shalek move to dismiss the plaintiffs’ claims alleging control person liability under Section 1’5 of the Securities Act and Section 20 of the Exchange Act. Pace argues that the complaint does not contain particularized facts as to his culpable participation in management’s alleged fraud. Shalek bases her motion on the assertion that the plaintiffs have failed to allege a primary violation and, thus, there can be no secondary liability. Section 15 of the Securities Act, 15 U.S.C. § 77o, provides that “any person who ... controls” any entity that violates the Securities Act “shall be liable jointly and severally” for those violations, unless the control person lacked knowledge of the events giving rise to the liability. Section 20(a) of the Exchange Act, 15 U.S.C. § 78t(a), provides that a person in control of an entity that violates the Exchange Act is jointly liable for such violations “unless the controlling person acted in good faith and did not directly or" }, { "docid": "4500960", "title": "", "text": "analysis as that used for control person liability under the Exchange Act. Ellison v. American Image Motor Co., 36 F.Supp.2d 628, 638-39 (S.D.N.Y.1999). However, as discussed above, claims under Sections 11 and 12 of the Securities Act sound in strict liability and do not require knowledge by the defendants of the misrepresentations. Thus, the concept of culpability would not apply. Instead, to plead control person liability under the Securities Act, it is sufficient merely to demonstrate that the individual defendants controlled an entity that violated the securities laws. Degulis v. LXR Biotechnology, Inc., 928 F.Supp. 1301, 1315 (S.D.N.Y.1996). The SEC defines a control person as one having “the possession, direct[ly] or indirect[ly], of the power to direct or cause the direction of management and policies of a person, whether through the ownership of voting securities or otherwise.” 17 C.F.R. § 240.12b-2; 17 C.F.R. § 230.405; S.E.C. v. First Jersey Securities, 101 F.3d 1450, 1472-73 (2d Cir. 1996). The complaint is sufficient to allege control person liability against the individual defendants for the Securities Act violations. It is undisputed that Defendants Dean and Ross Blechman and John McCusker are officers of Twinlab, own substantial amounts of Twinlab stock, and that each exercised control over the allegedly misleading 10-Q reports, the prospectus, and other statements, including affixing their signatures to these documents. These allegations are sufficient to allege control person liability under the Securities Act. Degulis, 928 F.Supp. at 1315. Similarly, Defendants Sandra Dunbar and John Danhakl are directors of Twinlab, and are alleged to hold substantial amounts of Twinlab stock, and signed the misleading 10-Q forms and prospectus. While director status alone is not sufficient to establish control, a director’s position, coupled with that director’s signature on a misleading filing has been held to be sufficient evidence of control. In re Livent, Inc., 78 F.Supp.2d 194, 221-22 (S.D.N.Y. 1999) citing Jacobs v. Coopers & Lybrand, 1999 WL 101772 at *17 (S.D.N.Y.1999). Therefore, the allegations against Dunbar and Denhakl are sufficient to allege control person liability against these Defendants. It appears from the complaint that the Plaintiffs also seek to assert their" }, { "docid": "4500932", "title": "", "text": "Act, charging these Defendants \"with control person liability for the violations alleged in the first and second causes of action. The fourth cause of action is alleged against Twinlab, Ross and Dean Blech-man, and McCusker pursuant to Section 10-b and Rule 10b-5 of the Securities and Exchange Act of 1934. This cause of action alleges that these Defendants engaged in a scheme to defraud purchasers of Twinlab stock as described above. The fifth cause of action seeks control person liability against Defendants Ross and Dean Blechman and McCusker under Section 20 of the Securities and Exchange Act for the fraud alleged in the fourth cause of action. Each of the Defendants filed motions to dismiss the complaint pursuant to Fed. R.Civ.P. 12(b)(6). Twinlab contends that the Plaintiffs’ allegations fail to sufficiently plead the elements of a fraud claim under Section 10-b; fail to adequately allege motive and opportunity to commit fraud; fail to demonstrate that the secondary offering was in any way misleading; and fail to establish that the Plaintiffs actually purchased their shares in 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" }, { "docid": "7436958", "title": "", "text": "culpable participant,’ is, as Judge Newman observed in an entirely unrelated context, ‘an inquiry in the class of angelic terpsichore on heads of pins.’ ”) (citations omitted). In Mishkin, Judge Loretta Preska of this Court applied the same standard for proving scien-ter as required by § 10(b). See Mishkin, 1998 WL 651065, at *25 (“I see no good reason to apply one strong inference standard to section 10(b) claims and another strong inference standard to section 20(a) claims.”); see also In re Sotheby’s Holdings, Inc., 00 Civ. 1041, 2000 WL 1234601, at *8 (S.D.N.Y. Aug.31, 2000) (holding that plaintiff failed to plead required state of mind under § 20(a) because plaintiff failed to plead required state of mind under § 10(b)); In re Livent, Inc., 78 F.Supp.2d at 222 (same). But Judge Preska applied only a portion of that standard, stating that a plaintiff must allege “particularized facts of the controlling person’s conscious misbehavior as a culpable participant in the fraud.” Mishkin, 1998 WL 651065, at *25. Judge Preska then concluded that the plaintiff had failed to “adequately allege what Ageloff did in the course of exercising ... control.” Id. at *26. Under § 10(b), however, a plaintiff must allege conscious misbehavior or recklessness. See Acito, 47 F.3d at 52. Recklessness adds an important dimension to the § 10(b) analysis, because it allows a plaintiff to plead that the defendant knew or should have known that it was misrepresenting material facts. See Novak, 216 F.3d at 308; see also supra Part II.A.l.b.ii. Applying that standard to § 20(a), plaintiffs can satisfy their burden by pleading facts giving rise to a strong inference that the controlling person knew or should have known that the primary violator, over whom that person had control, was engaging in fraudulent conduct. See In re Tioinlab Corporation Securities Litigation, 103 F.Supp.2d 193, 208 (E.D.N.Y.2000) (dismissing § 20(a) claim because “[plaintiffs do not specifically allege facts demonstrating that the officers of Twinlab culpably participated in the scheme, rather than, for example, unknowingly approving credible but fraudulent financial reports prepared by subordinates.”). By failing to exercise its control" }, { "docid": "10224267", "title": "", "text": "by the Defendants were misleading at the time they were made. In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1547-48 n. 7 (9th Cir.1994); Wallace, 1997 WL 602808, at *16. The Plaintiffs have failed to do this. The allegations made by the Plaintiffs, therefore, are insufficient to produce a strong inference of fraudulent intent by the Defendants. 4. The Control Person Claims In the Second Amended Complaint, Plaintiffs allege the Individual Defendants violated Section 20(a) “by virtue of their high-level positions” at Party City. Second Amended Complaint at ¶ 104. Section 20(a) provides for secondary liability of “control persons.” 15 U.S.C. § 78t. In order to maintain a cause of action for control person liability under Section 20(a), a plaintiff is required to establish: (1) an underlying violation by a controlled person or entity; (2) that the defendants are controlling persons; and (3) that they were in some meaningful sense culpable participants in the fraud. Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir.1998); see also In re Cendant Corp. Sec. Litig., 81 F.Supp.2d 550, 558 (D.N.J.2000). Liability under Section 20(a) is predicated upon an independent violation of “this chapter or the rules or regulations thereunder.” 15 U.S.C. § 78t-1(a); Greebel, 194 F.3d at 207. Claims under Section 20(a), therefore, are “derivative — requiring proof of a separate underlying violation of the Exchange Act.” In re Milestone Scientific Sec. Litig., 103 F.Supp.2d 425, 474 (D.N.J.2000); see also In re Advanta, 180 F.3d at 541; Jackson Nat’l Life Ins. Co. v. Merrill Lynch & Co., Inc., 32 F.3d 697, 703 (2d Cir.1994) (“[T]o state a claim under [Section] 20(a), a plaintiff must plead a predicate violation of the ’34 Act [sic] or its rules and regulations.”). Because the Plaintiffs have not pleaded a predicate violation of Section 10(b) or Rule 10b-5, the Section 20(a) claim must be dismissed. Conclusion For the reasons stated, the Motion to Dismiss is granted. The Second Amended Complaint is dismissed, with prejudice. . In support of the Motion to Dismiss, the Defendants submitted: a memorandum of law in support of the Motion to Dismiss (the" }, { "docid": "7436959", "title": "", "text": "failed to “adequately allege what Ageloff did in the course of exercising ... control.” Id. at *26. Under § 10(b), however, a plaintiff must allege conscious misbehavior or recklessness. See Acito, 47 F.3d at 52. Recklessness adds an important dimension to the § 10(b) analysis, because it allows a plaintiff to plead that the defendant knew or should have known that it was misrepresenting material facts. See Novak, 216 F.3d at 308; see also supra Part II.A.l.b.ii. Applying that standard to § 20(a), plaintiffs can satisfy their burden by pleading facts giving rise to a strong inference that the controlling person knew or should have known that the primary violator, over whom that person had control, was engaging in fraudulent conduct. See In re Tioinlab Corporation Securities Litigation, 103 F.Supp.2d 193, 208 (E.D.N.Y.2000) (dismissing § 20(a) claim because “[plaintiffs do not specifically allege facts demonstrating that the officers of Twinlab culpably participated in the scheme, rather than, for example, unknowingly approving credible but fraudulent financial reports prepared by subordinates.”). By failing to exercise its control to prevent the primary violation, the controlling person is “in some meaningful sense a culpable participant in the primary violation.” Boguslavsky, 159 F.3d at 720 (quotation marks and citation omitted). Several cases applying the culpable participation standard in the wake of First Jersey rely on both the controlling person’s fraudulent conduct and that person’s knowledge of someone else’s fraud to conclude that the culpable participation element has been satisfied. See Ruskin, 2000 WL 1154278, at *7 (complaint sufficiently alleged culpable participation by stating in part: “As Chairman and CEO of TIG Re, as well as a Director of TIG, Clark knew or should have known that TIG’s public statements which he made or which he had responsibility to supervise, and TIG’s public reports for which he had responsibility to supply data and information and to determine the final presentation, were false and misleading as more fully alleged herein.”); In re Oxford Health Plans, Inc., 187 F.R.D. 133, 143 (S.D.N.Y.1999) (denying motion to dismiss § 20(a) claim where defendants “held high level management positions in which" }, { "docid": "12957277", "title": "", "text": "their burden by pleading particularized facts that the alleged controlling defendant “knew or should have known that [the primary violator] was engaging in fraudulent conduct...” Id. at 429. Without specifically stating that § 20(a) plaintiffs may plead recklessness, as opposed to conscious misbehavior or actual fraudulent intent, to satisfy their burden of showing culpability, rulings of other courts in this Circuit support the proposition. In In re Twinlab Corp. Sec. Litig., 103 F.Supp.2d 193, 208 (E.D.N.Y.2000), the court dismissed the plaintiffs’ § 20(a) claim despite the complaint’s allegations that the defendants had access to financial statements and the capacity to prevent their fraudulent issuance. To survive the motion to dismiss, the plaintiffs further needed to allege “facts demonstrating that [the defendants] culpably participated in the scheme, rather than, for example, unknowingly approving credible but fraudulent financial reports prepared by subordinates.” Id. Similarly, in Ruskin v. TIG Holdings, Inc., 98 CIV. 1068, 2000 WL 1154278, at *7, (S.D.N.Y. Aug.14, 2000), the court held that the plaintiffs’ complaint was sufficient because it alleged facts showing that the defendant “knew or should have known” of the fraudulence of the information disseminated. This Court is persuaded that recklessness is the appropriate minimum standard of culpability that plaintiffs must plead under § 20(a). This result reflects the purposes and spirit of the 1995 Reform Act. See discussion infra Part V.B.3. 3. The 1995 Reform Act a. Pleading Standards Congress enacted the PSLRA in response to concerns about perceived abuses of private class actions in securities fraud litigation. In particular, Congress sought to deter strike suits of dubious merit filed for their vexation value, or as instruments intended to extract large settlements through unfounded assertions of fraud against any person associated with corporate bad news which causes the price of an issuer’s stock to drop significantly. See Novak, 216 F.3d at 306. To these ends, the PSLRA enacted a number of amendments to the 1933 and 1934 Acts that come into play in the case at bar. Section 21D(b)(l) requires that in connection with any private action arising under the statute in which plaintiffs allege to" }, { "docid": "23568163", "title": "", "text": "state of mind, they have held that plaintiffs must plead scienter under paragraph (b)(2) of the PSLRA. See, e.g., In re CINAR Corp. Sec. Litig., 186 F.Supp.2d 279, 310 (E.D.N.Y.2002); Independent Energy, 154 F.Supp.2d at 770. This assumption has been made despite the fact that the Second Circuit has never defined “culpable participation” or equated that term with scienter. Given the reliance of courts on this assumption, it is interesting to trace the development of Section 20(a) jurisprudence in the Second Circuit. As early as 1973, the court wrote: The intent of Congress in adding [Section 20], passed at the same time as the amendment to Section 15 of the 1933 Act, was obviously to impose liability only on those directors who fall within its definition of control and who are in some meaningful sense culpable participants in the fraud perpetrated by controlled persons. Lanza v. Drexel & Co., 479 F.2d 1277, 1299 (2d Cir.1973) (en banc) (emphasis added). See also Gordon v. Burr, 506 F.2d 1080, 1086 (2d Cir.1974). In 1980, however, the Second Circuit suggested that there was no scienter (as opposed to culpable participation) element to Section 20(a) when it held that allegations of control, coupled with an underlying violation, are sufficient to state a claim. See Marbury Mgmh, 629 F.2d at 716. According to the Marbury Management court, good faith could only be asserted as an affirmative defense. Id. Nonetheless, after 1980, district courts were divided on whether Section 20(a) contained an element of scienter depending on whether they “followed” Lanza and Gordon, or Marbury Management, Corn-pare, e.g., Robbins v. Moore Med. Corp., 788 F.Supp. 179, 188 (S.D.N.Y.1992) (holding that plaintiff must plead control and scienter), with In re CitiSource, Inc. Sec. Litig., 694 F.Supp. 1069, 1076 (S.D.N.Y.1988) (holding that plaintiff must merely plead control). See generally In re Health Mgmt., Inc. Sec. Litig., 970 F.Supp. 192, 205-06 (E.D.N.Y.1997) (discussing split in the district courts). In 1996, the Court of Appeals attempted to reconcile its prior precedent by holding that, In order to establish a prima facie case of controlling-person liability, a plaintiff must show a" }, { "docid": "18484005", "title": "", "text": "showing of culpability. See, e.g., Demaria v. Andersen, 153 F.Supp.8d 300, 313 (S.D.N.Y.2001); American Bank Note Holographies, 93 F.Supp.2d at 441; Ellison v. American Image Motor Co., Inc., 36 F.Supp.2d 628, 637-38 (S.D.N.Y.1999). As previously noted, claims under sections 11 and (12)(a)(2) of the Securities Act sound in strict liability and do not require knowledge of the misrepresentations. The concept of culpability is therefore inapposite. See Twinlab Corp., 103 F.Supp.2d at 207-08. Instead, to plead control person liability under the Securities Act, it is sufficient to allege an underlying primary violation of the Securities Act and control over the controlled person. See Degulis, 928 F.Supp. at 1315. 1. Application to DLJ Inc. DLJ Inc. first argues that plaintiffs have not adequately pled that it is a control person. See Underwriter Def. Mem. at 24. “Control over a primary violator may be established by showing that the defendant possessed ‘the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.’ ” S.E.C. v. First Jersey Secs., Inc., 101 F.3d 1450, 1472-73 (2d Cir.1996) (quoting 17 C.F.R. § 240.12b-2). Actual control over the wrongdoer and the transactions in question is necessary for control person liability. See Cromer Fin. Ltd. v. Berger, 137 F.Supp.2d 452, 484 (S.D.N.Y.2001). To survive a motion to dismiss, a plaintiff need only plead facts supporting a reasonable inference of control. See Gabriel Capital, 122 F.Supp.2d at 426; Mishkin v. Ageloff, No. 97 Civ. 2690, 1998 WL 651065, at *26 (S.D.N.Y. Sep.23,1998). Here, plaintiffs have alleged that DLJ Inc. conducts its business domestically and internationally through its wholly-owned subsidiaries, including DLJ Securities and DLJ International. See SAC ¶¶ 185, 232. Plaintiffs further argue that DLJ Inc. “was running the business of DLJ Securities through common management.” PI. Mem. at 36. Specifically, plaintiffs allege that the three highest officers of DLJ Inc. were on the Operating Committee that ran DLJ Securities. See id. at 36-37. Plaintiffs have pled sufficient facts supporting an inference that DLJ Inc. controlled DLJ Securities and DLJ International. See Borden," }, { "docid": "2419322", "title": "", "text": "particularity, and claim 31 is dismissed as against those defendants. 6. Control Person Liability Pace and Shalek move to dismiss the plaintiffs’ claims alleging control person liability under Section 1’5 of the Securities Act and Section 20 of the Exchange Act. Pace argues that the complaint does not contain particularized facts as to his culpable participation in management’s alleged fraud. Shalek bases her motion on the assertion that the plaintiffs have failed to allege a primary violation and, thus, there can be no secondary liability. Section 15 of the Securities Act, 15 U.S.C. § 77o, provides that “any person who ... controls” any entity that violates the Securities Act “shall be liable jointly and severally” for those violations, unless the control person lacked knowledge of the events giving rise to the liability. Section 20(a) of the Exchange Act, 15 U.S.C. § 78t(a), provides that a person in control of an entity that violates the Exchange Act is jointly liable for such violations “unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action.” In order to establish a prima facie ease of liability under § 20(a), a plaintiff must show: (1) a primary violation by a controlled person; (2) control of the primary violator by the defendant; and (3) “that the controlling person was in some meaningful sense a culpable participant” in the primary violation. Boguslavsky v. Kaplan, 159 F.3d 715, 721 (2d Cir.1998); see Suez Equity Investors, L.P. v. Toronto-Dominion Bank, 250 F.3d 87, 101 (2d Cir.2001); SEC v. First Jersey Secs., Inc., 101 F.3d 1450, 1472 (2d Cir.1996). “Control over a primary violator may be established by showing that the defendant possessed ‘the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.’ ” First Jersey Secs., 101 F.3d at 1472-73 (quoting 17 C.F.R. § 240.12b-2). Examination of control person liability under the Securities Act is governed by the same analysis as that used for control person" }, { "docid": "2477266", "title": "", "text": "the individual defendants caused all the losses suffered by each member of the class. The individual defendants may be able to demonstrate that an intervening cause was the true reason for plaintiffs’ loss, but “such is a matter of proof at trial and not to be decided on a Rule 12(b)(6) motion to dismiss.” Emergent Capital Inv. Mgmt., 343 F.3d at 197. B. Plaintiffs’ § 20(a) Claims Section 20(a) of the Exchange Act provides: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or any rule or regulation thereunder shall also be liable ... to the same extent as such controlled person ... unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. 15 U.S.C. § 78t(a). To state a prima facie case under § 20(a) “a plaintiff must show (1) a primary violation by a controlled person; (2) control of the primary violator by the defendant; and (3) ‘that the controlling person was in some meaningful sense a culpable participant’ in the primary violation.” Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir.1998) (quoting SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1472 (2d Cir.1996)); see also Suez Equity Investors, 250 F.3d at 101. “Control” under this section is defined as “the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise.” 17 C.F.R. § 240.12b-2; see also First Jersey, 101 F.3d at 1473. It is well settled that a plaintiff who merely alleges that the defendant was an officer or director of the corporation has not sufficiently pled “control.” See In re CINAR Corp. Sec. Litig., 186 F.Supp.2d 279, 309 (E.D.N.Y.2002). We have previously held that a plaintiff has adequately pled “control” when he has alleged that the defendant controlled the content of company press releases and public filings. In re Quintel Entm’t Inc. Sec. Litig., 72 F.Supp.2d 283, 289 (S.D.N.Y.1999) (Conner, J.). Moreover, where it is alleged" }, { "docid": "9696454", "title": "", "text": "F.Supp.2d 392, 415 (S.D.N.Y.2003) (stating “the extent to which the control must be alleged will be governed by Rule 8’s pleading standard”); In re Initial Public Offering, 241 F.Supp.2d at 354, 396 (stating “Section 15 claims need only be pleaded under Rule 8; a defendant is only entitled to notice that she allegedly controlled an entity that violated Section 11” and “Section 20(a) must therefore be pleaded only in accordance with Rule 8(a). Neither the PSLRA (because scienter is not an essential element), nor Rule 9(b) (because fraud is not an essential element), apply to a Section 20(a) claim”). To state a control person liability claim, under either § 20(a) or § 15, the plaintiffs must allege that the defendants acted as control persons over primary violators of § 10(b), or § 12. Under both § 15 and § 20(a), control has the same meaning. In re Initial Public Offering, 241 F.Supp.2d at 393. As the court in In re MicroStrate-gy explained: The SEC defines “control” as “possession, direct or indirect of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.” 17 C.F.R. § 240.12b-2. A plaintiff satisfies the control requirement under this definition by pleading facts showing that the controlling defendant “had the power to control the general affairs of the entity primarily liable at the time the entity violated the securities laws ... [and] had the requisite power to directly or indirectly control or influence the specific corporate policy which resulted in the primary liability.” 115 F.Supp.2d at 661 (quoting Brown v. Enstar Group, Inc., 84 F.3d 393, 396 (11th Cir.1996)). Furthermore, determining whether an individual is a control person presents a “complex factual question,” SEC v. Coffey, 493 F.2d 1304, 1318 (6th Cir.1974), and “as such, it is ‘not ordinarily subject to resolution on a motion to dismiss,’ dismissal is appropriate only when ‘a plaintiff does not plead any facts from which it can reasonably be inferred the defendant was a control person.’ ” In re MicroStrategy, 115 F.Supp.2d" }, { "docid": "6778863", "title": "", "text": "and (2) ‘circumstances establishing control’ of a primary violator.” In re Campbell Soup Co. Sec. Litig., 145 F.Supp.2d 574, 599 (D.N.J.2001) (citing In re MobileMedia Sec. Litig., 28 F.Supp.2d 901, 940 (D.N.J.1998)). It is also clear that “culpable participation” is an element of a prima facie control person claim. See Rochez Bros., Inc. v. Rhoades, 527 F.2d 880, 890 (3d Cir.1975), cert. denied, 425 U.S. 993, 96 S.Ct. 2205, 48 L.Ed.2d 817 (1976) (“secondary liability cannot be found under Section 20(a) unless it can be shown that the defendant was a culpable participant in the fraud.”); see also Sharp v. Coopers & Lybrand, 649 F.2d 175, 185 (3d Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982). The dispute is whether culpable participation must be alleged at the pleading stage; McDonnell cites several cases for the proposition that it does. In re Independent Energy Holdings PLC Sec. Litig., 154 F.Supp.2d 741, 769-770 (S.D.N.Y.2001); Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir.1998); Carpenter v. Harris Upham & Co., Inc. 594 F.2d 388, 394 (4th Cir.1979), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979); In re Twinlab Corp. Sec. Litig., 103 F.Supp.2d 193 (S.D.N.Y.2000); In re Nice Systems, Ltd. Sec. Litig., 135 F.Supp.2d at 584-85; In re Livent, Inc. Noteholders Sec. Litig., 151 F.Supp.2d 371 (S.D.N.Y. 2001); Dau v. Cephalon, No. 99-CV-2439, 2000 WL 1469347 (E.D.Pa. Sept.25, 2000). As discussed above, this Court has previously determined that Plaintiffs have stated a Section 10(b) and Rule 10b-5 claim against Rent-Way and therefore have established the first prong, a primary violation by a controlled entity. We must now determine whether Plaintiffs have alleged the second prong and whether, as McDonnell urges, culpable participation must be alleged at the pleading stage. Because we find that the culpable participation question would be dispositive as to McDonnell if answered in the affirmative, we will address it first. Having reviewed the applicable case law, we conclude that “culpable participation” need not be pled in a Section 20(a) action. Rochez and Sharp are not pleading cases, and neither is Boguslavsky," } ]

[ { "docid": "22924115", "title": "", "text": "they engaged in a protest in the sincere belief that they were breaking the law in a good cause — cannot be acceptable legal defense or justification. Their sincerity is beyond question. It implies no disparagement of their idealism to say that society will not tolerate the means they chose to register their opposition to the war. If these defendants were to be absolved from guilt because of their moral certainty that the war in Vietnam is wrong, would not others who might commit breaches of the law to demonstrate their sincere belief that the country is not prosecuting the war vigorously enough be entitled to acquittal? Both must answer for their acts. We are not called upon in this case to establish guidelines for determining in what extreme circumstances, if any, governmental acts may be resisted. We confine ourselves to this case and hold only that the law does not allow the seizure of public records and their mutilation or destruction, even when this is done as an act of conscience to dramatize the protest of a presumed evil. The acts of these appellants are not as extreme as some committed by other dissenters. Nevertheless, this publicly exploited action cannot be dismissed as de minimis. To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic. The judgment below is Affirmed. . Title 18 U.S.C. § 1361 provides in pertinent part: Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, or any property which has been or is being manufactured or constructed for the United States, or any department or agency thereof, shall be punished as follows: H« * * Title 18 U.S.C. §" } ]

[ { "docid": "21388799", "title": "", "text": "a duty to dismiss potentially nullifying jurors was based on its [C]ategorical[ ] rejection of] the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court’s instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict. Id. at 614 (citation and footnote omitted). Before it categorically rejected the possibility of jury nullification, the Thomas court briefly reviewed — but ultimately found unpersuasive — nullification’s history as a form of “tolerable civil disobedience” as exemplified in Zenger, id. at 614, and the “long and complicated history of juries acting as judges of the law as well as the evidence” in the “Anglo-American legal system,” id. at 614-15; the various procedural rules that serve to protect jury verdicts from outside inquiry (e.g., secrecy of deliberations, general verdicts, inconsistent verdicts), id. at 615; the jury’s part in “‘introducing] a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions,’ ” id. (quoting U.S. ex rel. McCann v. Adams, 126 F.2d 774, 776 (2d Cir.1942) (Hand, J.)); and the federal courts’ common acknowledgment of the “de facto power of a jury to render general verdicts ‘in the teeth of both law and facts.’ ” Id. (quoting Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 65 L.Ed. 185 (1920)). But, because jury nullification can lead to a “sabotage of justice,” id. at 616 (quoting Randall Kennedy, The Angry Juror, Wall St. J., Sept. 30, 1994, at A12) (referring to acquittals of White defendants by White juries in 1960s civil rights trials) and existing Supreme Court precedent—Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895) — the Court of Appeals for the Second Circuit concluded that “trial courts have the duty" }, { "docid": "4431359", "title": "", "text": "laws that there is no right to a jury nullification instruction. United States v. Buttorff, 572 F.2d 619, 627 (8th Cir.1978); United States v. Wiley, 503 F.2d 106, 107 (8th Cir.1974). In Wiley we said, quoting earlier authority: To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. 503 F.2d at 107. Since the Supreme Court’s decision in Sparf and Hanson v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895), federal courts have uniformly recognized the right and duty of the judge to instruct the jury on the law and the jury’s obligation to apply the law to the facts, and that nullification instructions should not be allowed. It would serve no useful purpose to examine the history of nullification instructions further, or to engage in debate concerning the relationship between the general verdict and the court’s instructions. The jury returned a general verdict against Jameson finding him guilty on all counts. Jameson further argues that the district court erred in refusing to define the words “fraudulent” and “income”. 26 U.S.C. § 7205 makes it a crime to supply “false” or “fraudulent” information. The government proceeded under the theory that the withholding exemption certificates submitted were false and the term “false” was defined by the district court. 26 U.S.C. § 7203 uses the term “gross income” which was also defined by the district court in an instruction. Jameson’s arguments that further definitions were required have no merit. VI. Drefke argues that 26 U.S.C. §§ 7203 and 7205 giving rise to his convic tion constitute punishment for failure to give self-incriminating information. Both the Supreme Court and the Eighth Circuit have held that the Fifth Amendment right against self-incrimination does not authorize individuals to refuse to disclose information concerning their income. United States v. Sullivan, 274 U.S." }, { "docid": "21388829", "title": "", "text": "Jurors may be as unfamiliar with other aspects of the criminal sentencing process as they are with NGI verdicts. But, as a general matter, jurors are not informed of mandatory minimum or maximum sentences, nor are they instructed regarding probation, parole, or the sentencing range accompanying a lesser included offense. See United States v. Thigpen, 4 F.3d 1573, 1578 (11th Cir.1993) (en banc), cert. pending, 510 U.S. 988, 114 S.Ct. 542, 126 L.Ed.2d 445 (1993); United States v. Frank, 956 F.2d 872, 879 (9th Cir.1991), cert. denied, 506 U.S. 932, 113 S.Ct. 363, 121 L.Ed.2d 276 (1992). Because it is conceivable that some jurors might harbor misunderstandings with regard to these sentencing options, a district court, under Shannon’s reasoning, might be obligated to give juries information regarding these possibilities as well. In short, if we pursue the logic of Shannon’s position, the rule against informing jurors of the consequences of their verdicts would soon be swallowed by the exceptions. Shannon v. United States, 512 U.S. 573, 586-87, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994). Our jurors are intelligent and responsible. They can understand complex legal and factual issues that are adequately explained to them with the aid of effective advocates and judges. There is no reason to expect that they will be soft on child pornographers, drug traffickers, repeat offenders, or others subject to mandatory mínimums. G. Conclusion Perhaps the issue is as well summed up as it need be by quoting briefly from Professor Roscoe Pound and Judge Learned Hand. Pound referred to jury, nullification as “the great corrective of law in its actual administration.” Roscoe Pound, Laiv in Books and Law in Action, 44 Am. L.Rev. 12, 18 (1910). And Learned Hand declared that nullification supplies the necessary “slack into the enforcement of law.” United States ex rel. McCann v. Adams, 126 F.2d 774, 776 (2d Cir.1942). It allows the jury to temper the law’s rigor “by the mollifying influence of current ethical conventions.” Id.-, see, e.g., Andrew J. Par-menter, Nullifying the Jury: “The Judicial Oligarchy” Declares War on Jury Nullification, 46 Washburn L.J. 379, 426 (2007) (providing" }, { "docid": "9868302", "title": "", "text": "breaches of the law to demonstrate their sincere belief that the country is not prosecuting the war vigorously enough be entitled to acquittal? Both must answer for their acts. “We are not called upon in this case to establish guidelines for determining in what extreme circumstances, if any, governmental acts may be resisted. We confine ourselves to this case and hold only that the law does not allow the seizure of public records and their mutilation or destruction, even when this is done as an act of conscience to dramatize the protest of a presumed evil. The acts of these appellants are not as extreme as some committed by other dissenters. Nevertheless, this publicly exploited action cannot be dismissed as de minimis. To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic.” [Emphasis supplied.] United States v. Simpson (1972) 9 Cir. 460 F.2d 515, was another Viet Nam war case, and it narrowly limits the scope of a justification defense. Comment is made that the age-old instances of “justification” are the defenses of self defense, defense of property and prevention of a crime being committed in the person’s presence. However, the case holds that these latter defenses can’t be distorted to fit objection to government policies because “[a]n essential element of the so-called justification defenses is that a direct causal relationship be reasonably anticipated to exist between the defender’s action and the avoidance of harm.” The court then said, “[i]t was unreasonable for Simpson to assume that any violent action he initiated might have any significant effect upon the supposed ills that he hoped to remedy.” The footnote pointed out that the Viet Nam War would have continued “whether or not the San Jose, California draft" }, { "docid": "23017630", "title": "", "text": "Stimson, The American Revolution In The Law: Anglo-American JURISPRUDENCE BEFORE JOHN MARSHALL 52-55 (1990) (describing Zenger trial). We are also aware of the long and complicated history of juries acting as judges of the law as well as the evidence, see, e.g., John D. Gordan III, Juries as Judges of the Law: The American Experience, 108 Law Q. Rev. 272 (1992); Mark De Wolfe Howe, Juries as Judges of Criminal Law, 52 Harv. L. Rev. 582 (1939), and of the theoretical underpinnings of this practice in the United States, in which legal decisions by juries were sometimes regarded as an expression of faithfulness to the law (regardless of the authority of institutions or officeholders), rather than defiance of the law or “nullification.” More generally, the very institution of trial by jury in a criminal case, as Judge Learned Hand observed, “introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions.” U.S. ex rel. McCann v. Adams, 126 F.2d 774, 776 (2d Cir.), rev’d on other grounds, 317 U.S. 269, 68 S.Ct. 236, 87 L.Ed. 268 (1942). This is so because, as Judge Hand explained, “[t]he individual can forfeit his liberty — to say nothing of his life— only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came.... [S]inee if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove-” Id. at 775-76. As courts have long recognized, several features of our jury trial system act to protect the jury’s power to acquit, regardless of the evidence, when the prosecution’s case meets with the jury’s “moral[ ] disap-prov[al].” Since the emergence of the general verdict in criminal eases and the famous opinion in Bushell’s Case, 124 Eng.Rep. 1006 (C.P.1670), freeing a member of the jury arrested for voting to acquit William Penn against the weight of the evidence, nullifying jurors have been protected from being" }, { "docid": "23141470", "title": "", "text": "United Nations Charter, and the Geneva agreements of 1954. . See also Autenrieth v. Cullen, 418 F.2d 586 (9th Cir. 1969), cert. denied, 397 U.S. 1036, 90 S.Ct. 1353, 25 L.Ed.2d 647 (1970) ; Swallow v. United States, 325 F.2d 97 (10th Cir. 1963), cert. denied, 377 U.S. 951, 84 S.Ct. 1630, 12 L.Ed.2d 497 (1964). . The good faith argument has also been couched in an “assertion that appellant believes that because the United States is acting criminally in Indo-China, international law authorizes, if not requires, an American to refuse payment of income taxes.” Appellant’s Brief, 16. We hold that defendant was not prejudiced. The jury was permitted to hear his views, which were admitted on the issue of motive and, as previously set forth, are not relevant to the issue of “wilfully.” Without conceding appellant’s standing to raise this issue (Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923) ; Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)), we are impressed by the observation of the Fourth Circuit in United States v. Moylan, supra, 417 F.2d at 1009: “To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic.” . Certain documents produced by the Intelligence Division of the Internal Revenue Service prior to trial as a result of a court order were held in camera. After examination by us, we ruled that, with the exception of the deletion of certain names, these materials should be presented by counsel for appellant for his examination and for any supplemental briefing, if so indicated. This was done. We now hold that appellant sustained no prejudicial error by reason of the district court’s ruling that the materials be sealed" }, { "docid": "23017636", "title": "", "text": "the 1964 trials of Byron De La Beckwith in Mississippi for the murder of NAACP field secretary Medgar Evers, or the 1955 acquittal of J.W. Millam and Roy Bryant for the murder of fourteen-year-old Emmett Till, see David HalbeRSTam, The Fifties 431-41 (1993); Randall Kennedy, Race, Crime and the Law 60-63, 250 (1997); Juan WilliaMS, Eyes on the Prize: Amer-ioa’s Civil Rights Years, 1954-1965, at 38-57, 221-25 (1987) — shameful examples of how nullification has been used to sanction murder and lynching. Inasmuch as no juror has a right to engage in nullification — and, on the contrary, it is a violation of a juror’s sworn duty to follow the law as instructed by the court— trial courts have the duty to forestall or prevent such conduct, whether by firm instruction or admonition or, where it does not interfere with guaranteed rights or the need to protect the secrecy of jury deliberations, see infra Section II.C, by dismissal of an offending juror from the venire or the jury. If it is true that the jury’s “prerogative of lenity,” Dougherty, 473 F.2d at 1133, introduces “a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions,” Adams, 126 F.2d at 776, then, as part and parcel of the system of checks and balances embedded in the very structure of the American criminal trial, there is a countervailing duty and authority of the judge to assure that jurors follow the law. Although nullification may sometimes succeed — because, among other things, it does not come to the attention of a presiding judge before the completion of a jury’s work, and jurors are not answerable for nullification after the verdict has been reached — it would be a dereliction of duty for a judge to remain indifferent to reports that a juror is intent on violating his oath. This is true regardless of the juror’s motivation for “nullification,” including race, ethnicity or similar considerations. A federal judge, whose own oath of office requires the judge to “faithfully and impartially discharge and perform all the duties incumbent" }, { "docid": "9437628", "title": "", "text": "necessary to inform the jury of its inherent power to acquit notwithstanding a defendant’s factual guilt, in order to properly control the arbitrary exercise of this prerogative. It cannot be gainsaid that juries can abuse their power and return verdicts contrary to the law and instructions of the court, and thus nullify the criminal law, but courts generally have refused to give such an instruction to the jury. In federal courts the issue was settled in Sparf and Hanson v. United States, 156 U.S. 51, 102, 15 S.Ct. 273, 293, 39 L.Ed. 343 (1895), in which the Supreme Court rejected an argument similar to appellant’s. See also United States v. Dougherty, 473 F.2d 1113, 1130-37 (D.C.Cir.1972) (reviewing history and propriety of federal rule). A jury has no more “right?’ to find a “guilty” defendant “not guilty” than it has to find a “not guilty” defendant “guilty,” and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power. Any arguably salutary functions served by inexplicable jury acquittals would be lost if that prerogative were frequently exercised; indeed, calling attention to that power could encourage the substitution of individual standards for openly developed community rules. Cf. United States v. Moylan, 417 F.2d 1002, 1009 (4th Cir.1969) (Sobeloff, J.), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970) (jury nullification instruction risks anarchy). In fact, only two states, Indiana and Maryland, might permit an instruction on jury nullification. See United States v. Moylan, 417 F.2d at 1007 n. 17. Appellant’s assertion that an instruction on jury nullification is the “best assurance against its arbitrary exercise,” Brief of Appellant at 27, thus has no support in the law and flies in the face of common sense. In light of the foregoing, the district court’s absolute refusal to instruct the jury as requested was entirely proper. C. Selective Prosecution Another ground for reversal in Nos. 81-375" }, { "docid": "6226599", "title": "", "text": "TALBOT SMITH, Senior District Judge. Defendant Troy L. Wiley appeals from his conviction by a jury of two counts of violation of 26 U.S.C. § 7203, willful failure to file an income tax return. He contends the trial court erred in failing to give a requested instruction on “jury nullification,” and in failing to dismiss because of alleged discriminatory and arbitrary enforcement of the statute here involved. We affirm. The defendant’s proposed instruction states in part that “the members of the jury have an inherent right to disregard the instructions of the court and the evidence presented and return a verdict of acquittal if you find that the defendant was not blameworthy in the sense that he has not shocked the community conscience * * It would serve no useful purpose to repeat here the debates over jury nullification which have been presented from time to time. Suffice it to say that we are persuaded, as have been all the federal courts which have recently considered the issue, that the defendant is not entitled to the instruction here requested. Particularly relevant here are the pointed observations of Judge Sobeloff in United States v. Moylan, 417 F.2d 1002, 1009 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970): To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. The defendant, an attorney, moved to dismiss the indictment alleging that the Government discriminatorily enforces 26 U.S.C. § 7203 “by intentionally and purposefully prosecuting self-employed persons, particularly professionals and specifically attorneys.’’ His proofs thereon' failed to convince the trial judge, and we find no error in the denial of the motion. It is clear that a reasonable prosecutorial discretion is inherent in our judicial system. As we stated in United States v. Alarik, 439 F.2d 1349, 1350-1351" }, { "docid": "12371437", "title": "", "text": "“conscience verdict” of acquittal consonant with “community values.” They claim to find support in a statement of Justice Holmes in Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920), that “the jury has the power to bring in a verdict in the teeth of both law and facts.” Their claim is that evidence of Hardy’s alleged grant of immunity might have led the jury to exonerate them, in spite of the fact that Hardy’s note was of no legal import and was obtained by patently illegal means. Their argument is tantamount to the assertion that traditional principles concerning the admissibility of evidence should be disregarded, and that extraneous factors should be introduced at trial to become part of the jury’s deliberations. Of course a jury can render a verdict at odds with the evidence and the law in a given case, but it undermines the very basis of our legal system when it does so. The right to equal justice under law inures to the public as well as to individual parties to specific litigation, and that right is debased when juries at their caprice ignore the dictates of established precedent and procedure. Judge Leventhal noted in United States v. Dougherty, 154 U.S. App.D.C. 76, 96, 473 F.2d 1113, 1133 (1972): This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy. In that case a panel of this court held that a trial judge need not deliver an instruction explaining the process of jury nullification. Id. at 99 — 100, 473 F.2d at 1136-37. See also United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970); United States v. Battiste, 2 Sum. 240, 24 F.Cas. 1042, (No. 14, 545) (D.Mass.1835). Judge Gasch determined that Kenneth Hardy’s note and Judge Bryant’s order were irrelevant to the issue of appellants’ guilt or innocence of the offenses charged, and thus declined to admit them into evidence. We" }, { "docid": "23141471", "title": "", "text": "of the Fourth Circuit in United States v. Moylan, supra, 417 F.2d at 1009: “To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic.” . Certain documents produced by the Intelligence Division of the Internal Revenue Service prior to trial as a result of a court order were held in camera. After examination by us, we ruled that, with the exception of the deletion of certain names, these materials should be presented by counsel for appellant for his examination and for any supplemental briefing, if so indicated. This was done. We now hold that appellant sustained no prejudicial error by reason of the district court’s ruling that the materials be sealed and held in camera." }, { "docid": "14754159", "title": "", "text": "a fear that an occasionally noble doctrine will, if acknowledged, often be put to ignoble and abusive purposes — or, to borrow the Court’s phrase, will “run the risk of anarchy.” Majority opinion at 1134. A breakdown of the legal order is not a result I would knowingly encourage or enjoy. But the question cannot be resolved, at least at this stage of the argument, by asking if we are for or against anarchy, or if we are willing to tolerate a little less law and order so that we can permit a little more jury nullification. No matter how horrible the effect feared by the Court, the validity of its reasoning depends on the existence of a demonstrable connection between the alleged cause (a jury nullification instruction or argument to the jury on that issue) and that effect. I am unable to see a connection. To be sure, there are abusive purposes, discussed below, to which the doctrine might be put. The Court assumes that these abuses are most likely to occur if the doctrine is formally described to the jury by argument or instruction. That assumption, it should be clear, does not rest on any proposition of logic. It is nothing more or less than a prediction of how jurors will react to the judge’s instruction or argument by counsel. And since we have no empirical data to measure the validity of the prediction, we must rely on our own rough judgments of its plausibility. The Court reasons that a jury uninformed of its power to nullify will invoke that power only where it “feel[s] strongly about the values involved in the case, so strongly that it [will] itself identify the case as establishing a call of high conscience * * Majority opinion at 1136. In other words, the spontaneous and unsolicited act of nullification is thought less likely, on the whole, to reflect bias and a perverse sense of values than the act of nullification carried out by a jury carefully instructed on its power and responsibility. It seems substantially more plausible to me to assume that" }, { "docid": "12371438", "title": "", "text": "well as to individual parties to specific litigation, and that right is debased when juries at their caprice ignore the dictates of established precedent and procedure. Judge Leventhal noted in United States v. Dougherty, 154 U.S. App.D.C. 76, 96, 473 F.2d 1113, 1133 (1972): This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy. In that case a panel of this court held that a trial judge need not deliver an instruction explaining the process of jury nullification. Id. at 99 — 100, 473 F.2d at 1136-37. See also United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970); United States v. Battiste, 2 Sum. 240, 24 F.Cas. 1042, (No. 14, 545) (D.Mass.1835). Judge Gasch determined that Kenneth Hardy’s note and Judge Bryant’s order were irrelevant to the issue of appellants’ guilt or innocence of the offenses charged, and thus declined to admit them into evidence. We approve his determination and agree that introduction of the note would have been unnecessarily confusing and potentially prejudicial. His ruling was consonant with a statement offered by Justice Harlan in 1895, following an exhaustive analysis of cases involving the alleged power of jury nullification: [I]t was the duty of the court to expound the law and that of the jury to apply the law as thus declared to the facts as ascertained by them. In this separation of the functions of court and jury is found the chief value, as well as safety, of the jury system. Those functions cannot be confounded or disregarded without endangering the stability of public justice, as well as the security of private and personal rights. Sparf and Hansen v. United States, 156 U.S. 51, 106, 15 S.Ct. 273, 295, 39 L.Ed. 343 (1895). The articulate wisdom of that decision has not been eroded by the passage of time. (9) Conclusion We find no error in the trial court’s decision to try appellants with their co-defendants below, nor can we" }, { "docid": "14754111", "title": "", "text": "to defer to an assumption of necessity that is contrary to reality. This so-called right of jury nullification is put forward in the name of liberty and democracy, but its. explicit avowal risks the ultimate logic of anarchy. This is the concern voiced by Judge Sobeloff in United States v. Moylan, 417 F.2d 1002, 1009 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970): To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic. • The statement that avowal of the jury’s prerogative runs the risk of anarchy, represents, in all likelihood, the habit of thought of philosophy and logic, rather than the prediction of the social scientist. But if the statement contains an element of hyperbole, the existence of risk and danger, of significant magnitude, cannot be gainsaid. In contrast, the advocates of jury “nullification” apparently assume that the articulation of the jury’s power will not extend its use or extent, or will not do so significantly or obnoxiously. Can this assumption fairly be made ? We know that a posted limit of 60 m.p.h. produces factual speeds 10 or even 15 miles greater, with an understanding all around that some “tolerance” is acceptable to the authorities, assuming conditions warrant. But can it be supposed that the speeds would stay substantially the same if the speed limit were put: Drive as fast as you think appropriate, without the posted limit as an anchor, a point of departure ? Our jury system is a resultant of many vectors, some explicit, and some rooted in tradition, continuity and general understanding without express formulation. A constitution may be meaningful though it is unwritten, as the British have proved for 900 years. The" }, { "docid": "14754110", "title": "", "text": "to do whatever it willed. The old rule survives today only as a singular relic. The breadth of the continuing prerogative of the jury, however, perseveres, as appears from the rulings permitting inconsistent verdicts. These reflect, in the words of Justice Holmes, an acknowledgment that “the jury has the power to bring in a verdict in the teeth of both law and facts,” or as Judge Learned Hand said: “We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.” Since the jury’s prerogative of lenity, again in Learned Hand’s words (supra, note 34) introduces a “slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions,” it is only just, say appellants, that the jurors be so told. It is unjust to withhold information on the jury power of “nullification,” since conscientious jurors may come, ironically, to abide by their oath as jurors to render verdicts offensive to their individual conscience, to defer to an assumption of necessity that is contrary to reality. This so-called right of jury nullification is put forward in the name of liberty and democracy, but its. explicit avowal risks the ultimate logic of anarchy. This is the concern voiced by Judge Sobeloff in United States v. Moylan, 417 F.2d 1002, 1009 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970): To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic. • The statement that avowal of the jury’s prerogative runs the risk of anarchy, represents, in all likelihood, the habit of thought of philosophy and logic, rather than the prediction of" }, { "docid": "6226600", "title": "", "text": "the instruction here requested. Particularly relevant here are the pointed observations of Judge Sobeloff in United States v. Moylan, 417 F.2d 1002, 1009 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970): To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. The defendant, an attorney, moved to dismiss the indictment alleging that the Government discriminatorily enforces 26 U.S.C. § 7203 “by intentionally and purposefully prosecuting self-employed persons, particularly professionals and specifically attorneys.’’ His proofs thereon' failed to convince the trial judge, and we find no error in the denial of the motion. It is clear that a reasonable prosecutorial discretion is inherent in our judicial system. As we stated in United States v. Alarik, 439 F.2d 1349, 1350-1351 (8th Cir. 1971): [T]he law is clear that a prosecutor may exercise discretion in deciding who should be prosecuted as long as he does not deliberately discriminate between persons in similar circumstances based upon an unjustifiable standard such as race, religion, or other arbitrary classification. [Citations and footnote omitted.] Affirmed. . Defendant was acquitted on a third count. . The full text reads : Now that you have heard the evidence and argument, it becomes my duty to give you the instructions of the court as to the law applicable in this case. Generally, it is your duty as jurors to consider the law as stated in the instructions of the court and to apply the rules of law so given to the facts as you find them from the evidence in the case. It is my duty, however, to instruct you that you the members of the jury have an inherent right to disregard the instructions of the court and the evidence presented and return a verdict of acquittal if you find that the" }, { "docid": "4431358", "title": "", "text": "further argues that the district court erred in denying his motion to quash the entire jury panel for prejudice. During voir dire one venireman, in response to the question whether he could be impartial, stated: “I feel that if the individual was a mature individual with an income, he had knowledge that he should by law file an income tax return.” We do not believe that this isolated comment caused substantial prejudice to Jameson and the district court’s denial of his motion to quash the panel was not an abuse of discretion. V. Jameson argues that he was prejudiced by the district court’s denial of several jury instructions including an instruction on “jury nullification,” that would have told the jury that it had a right to ignore the court’s instructions on the law in the case. He contends that the authors of the Bill of Rights intended the Sixth Amendment to incorporate such a right, and makes a lengthy argument based on historical precedents. We have specifically held in other cases involving prosecutions under tax laws that there is no right to a jury nullification instruction. United States v. Buttorff, 572 F.2d 619, 627 (8th Cir.1978); United States v. Wiley, 503 F.2d 106, 107 (8th Cir.1974). In Wiley we said, quoting earlier authority: To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. 503 F.2d at 107. Since the Supreme Court’s decision in Sparf and Hanson v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895), federal courts have uniformly recognized the right and duty of the judge to instruct the jury on the law and the jury’s obligation to apply the law to the facts, and that nullification instructions should not be allowed. It would serve no useful purpose to examine the history of nullification instructions" }, { "docid": "7174592", "title": "", "text": "jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justifies the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.” It is also true that the courts have adopted a rather ambiguous attitude toward jury nullification, or “jury lawlessness” as Dean Pound termed it. See Pound, Law in Books and Law in Action, 44 Am.L.Rev. 12, 18 (1910). Respect for the concept and its benefits is reflected in opinions such as Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), where it is observed that “[i]f the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.” In United States ex rel McCann v. Adams, 126 F.2d 774, 776 (2d Cir.), rev’d on other grounds, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942), Judge Learned Hand spoke of the jury’s verdict as introducing “a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions.” Yet, when defendants have asked that jurors be instructed on their power of nullification, the requests have been denied. United States v. Dougherty, 473 F.2d 1113 (D.C.Cir.1972); United States v. Boardman, 419 F.2d 110 (1st Cir. 1969); United States v. Moylan, supra. Thus, although acknowledging the existence of the jury’s prerogative and its beneficial role in acting as a “safety valve,” the courts do not encourage exercise of the right. Fear of excess or intolerable caprice is cited as the reason. United States v. Dougherty, 473 F.2d at 1134-35. This long-standing recognition of the jury’s power of lenity explains why the use of special interrogatories, which might “catechize a jury as to its reasons,” has been met with a lack of judicial enthusiasm. See United States v. Spock, 416 F.2d 165 (1st Cir. 1969). See also Morgan, A Brief History of Special Verdicts and Special Interrogatories, 32" }, { "docid": "14754109", "title": "", "text": "were not the colonial appointees projecting royalist patronage and influence but were themselves part and parcel of the nation’s intellectual mainstream, subject to the checks of the common law tradition and professional opinion, and capable, in Roscoe Pound’s words, of providing “true judicial justice” standing in contrast with the colonial experience. The tide was turned by Battiste, but there were cross-currents. At mid-century the country was still influenced by the precepts of Jacksonian democracy, which spurred demands for direct selection of judges by the people through elections, and distrust of the judge-made common law which enhanced the movement for codification reform. But by the end of the century, even the most prominent state landmarks had been toppled ; and the Supreme Court settled the matter for the Federal courts in Sparf v. United States, 156 U.S. 51, 102, 15 S.Ct. 273, 39 L.Ed. 343 (1895) after exhaustive review in both majority and dissenting opinions. The jury’s role was respected as significant and wholesome, but it was not to be given instructions that articulated a right to do whatever it willed. The old rule survives today only as a singular relic. The breadth of the continuing prerogative of the jury, however, perseveres, as appears from the rulings permitting inconsistent verdicts. These reflect, in the words of Justice Holmes, an acknowledgment that “the jury has the power to bring in a verdict in the teeth of both law and facts,” or as Judge Learned Hand said: “We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.” Since the jury’s prerogative of lenity, again in Learned Hand’s words (supra, note 34) introduces a “slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions,” it is only just, say appellants, that the jurors be so told. It is unjust to withhold information on the jury power of “nullification,” since conscientious jurors may come, ironically, to abide by their oath as jurors to render verdicts offensive to their individual conscience," }, { "docid": "23017637", "title": "", "text": "“prerogative of lenity,” Dougherty, 473 F.2d at 1133, introduces “a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions,” Adams, 126 F.2d at 776, then, as part and parcel of the system of checks and balances embedded in the very structure of the American criminal trial, there is a countervailing duty and authority of the judge to assure that jurors follow the law. Although nullification may sometimes succeed — because, among other things, it does not come to the attention of a presiding judge before the completion of a jury’s work, and jurors are not answerable for nullification after the verdict has been reached — it would be a dereliction of duty for a judge to remain indifferent to reports that a juror is intent on violating his oath. This is true regardless of the juror’s motivation for “nullification,” including race, ethnicity or similar considerations. A federal judge, whose own oath of office requires the judge to “faithfully and impartially discharge and perform all the duties incumbent upon [the judge] ... under the Constitution and laws of the United States,” 28 U.S.C. § 453 (1994), may not ignore colorable claims that a juror is acting on the basis of such improper considerations. Accordingly, every day in courtrooms across the length and breadth of this country, jurors are dismissed from the venire “for cause” precisely because they are unwilling or unable to follow the applicable law. In deed, one of the principal purposes of voir dire is to ensure that the jurors ultimately selected for service are unbiased and willing and able to apply the law as instructed by the court to the evidence presented by the parties. So also, a presiding judge possesses both the responsibility and the authority to dismiss a juror whose refusal or unwillingness to follow the applicable law becomes known to the judge during the course of trial. Rule 24(c) of the Federal Rules of Criminal Procedure provides for the substitution of alternates for “jurors who, prior to the time the jury retires to consider its verdict, become" } ]

[ { "docid": "4223747", "title": "", "text": "Anderson v. Dunbar Armored, Inc., 678 F.Supp.2d 1280, 1336- (N.D.Ga.2009) (noting that published decisions of the Eleventh Circuit and pre-September 30, 1981 eases of the former Fifth Circuit are binding precedent). Bautista expressly concluded that the district court “properly granted [the cruise line’s] motion to compel arbitration” of the seafarer’s claims “for negligence and unseaworthiness under the Jones Act ... and for failure to provide maintenance [and] cure” pursuant to the Convention. Bautista, 396 F.3d at 1292, 1303. Thus, such claims are clearly arbitrable. See Hodgson v. Royal Caribbean Cruises, Ltd., Case No. 09-CV-20798, [DE 37] at *18, 706 F.Supp.2d 1248, 1260 (S.D.Fla.2009) (Altonaga, J.) (concluding that “[t]he repeal of the [Jones Act’s] venue provision is no reason to conclude that Congress has intended to exempt the Jones Act where the Convention applies.”). Bautista also concluded that the same unequal bargaining power complained of here — i.e., where a multinational cruise line presents a foreign seafarer with an employment contract on a “take it or leave it” basis — does not “fit within the limited scope of defenses” to the enforceability of an arbitration agreement provided for by the Convention. Bautista, 396 F.3d at 1302 (concluding that “[w]hile it is plausible that economic hardship might make a prospective [ ] seaman susceptible to a hard bargain during the hiring process, Plaintiffs have not explained how this makes for a defense under the Convention.”). Thus, even assuming the existence of a bargaining advantage, Plaintiff has failed to establish that the disparity complained of constitutes a defense under the Convention, regardless of whether it implicates the UNIDROIT Principles referenced by Plaintiff. See Bautista, 396 F.3d at 1302; Koda v. Carnival Cruise Lines, Inc., Case No.: 06-cv-21088, [DE 47] at *2 (S.D.Fla. Sept. 7, 2007) (Hoeveler, J.) (noting that UNIDROIT Principles regarding bargaining power are not controlling in cases where enforcement of an arbitration agreement is sought pursuant to the Convention); see also Polychronakis v. Celebrity Cruises, Inc., 2008 WL 5191104, *3 n. 2 (S.D.Fla. Dec. 10, 2008) (King, J.) (concluding that traditional principles of unconscionability and unequal bargaining power were not valid" } ]

[ { "docid": "2593849", "title": "", "text": "creating a federal cause of action against the foreign state sponsor of terrorism. See, e.g., Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 27 (D.D.C.1998). In Cicippio-Puleo v. Islamic Republic of Iran, the D.C. Circuit concluded that neither § 1605(a)(7) nor the Flatlow Amendment itself created a cause of action against the foreign state. 353 F.3d 1024, 1027 (D.C.Cir.2004). Instead of a federal cause of action, the D.C. Circuit directed plaintiffs to assert causes of action using “some other source of law, including state law.” Id. at 1036; see, e.g., Dammarell v. Islamic Republic of Iran, 2005 WL 756090, at *33 (D.D.C. Mar. 25, 2005) (requiring plaintiffs post-Cicippio-Puleo to amend their complaint to state causes of action under the law of the state in which they were domiciled at the time of their injuries). Hence, following Cicippio-Puleo, the FSIA “terrorism exception” began to serve as “a ‘pass-through’ to substantive causes of action against private individuals that may exist in federal, state or international law.” Bodoff v. Islamic Republic of Iran, 424 F.Supp.2d 74, 83 (D.D.C.2006). In some eases, applying relevant state law created practical problems for litigants and the courts. Under applicable choice of law principles, district courts applied the state tort law of each individual plaintiffs domicile, which in many cases involved several different states for the same terrorism incident. See, e.g., Dammarell v. Islamic Republic of Iran, 404 F.Supp.2d 261, 275-324 (D.D.C.2005) (applying the law of six states and the District of Columbia). This analysis resulted in different awards for similarly-situated plaintiffs, based on the substantive tort law distinctions among states for intentional infliction of emotional distress claims. See, e.g., Peterson v. Islamic Republic of Iran, 515 F.Supp.2d 25, 44-45 (D.D.C.2007) (dismissing intentional infliction of emotional distress claims of those family members domiciled in Pennsylvania and Louisiana, whose laws required the claimant to be present at the site of the event causing emotional distress). To address these issues, Congress enacted section 1083 of the 2008 NDAA, which amended the “terrorism exception” and other related FSIA provisions. The Act repealed § 1605(a)(7) of Title 28 and replaced it" }, { "docid": "4223748", "title": "", "text": "scope of defenses” to the enforceability of an arbitration agreement provided for by the Convention. Bautista, 396 F.3d at 1302 (concluding that “[w]hile it is plausible that economic hardship might make a prospective [ ] seaman susceptible to a hard bargain during the hiring process, Plaintiffs have not explained how this makes for a defense under the Convention.”). Thus, even assuming the existence of a bargaining advantage, Plaintiff has failed to establish that the disparity complained of constitutes a defense under the Convention, regardless of whether it implicates the UNIDROIT Principles referenced by Plaintiff. See Bautista, 396 F.3d at 1302; Koda v. Carnival Cruise Lines, Inc., Case No.: 06-cv-21088, [DE 47] at *2 (S.D.Fla. Sept. 7, 2007) (Hoeveler, J.) (noting that UNIDROIT Principles regarding bargaining power are not controlling in cases where enforcement of an arbitration agreement is sought pursuant to the Convention); see also Polychronakis v. Celebrity Cruises, Inc., 2008 WL 5191104, *3 n. 2 (S.D.Fla. Dec. 10, 2008) (King, J.) (concluding that traditional principles of unconscionability and unequal bargaining power were not valid defenses pursuant to the Convention, even where Plaintiff was required to execute the pertinent agreements when he “was well into the voyage, at sea, and in the midst of performing his duties ... after any opportunity for negotiation or disembarkation had passed.”). B. Unfavorable Discovery, Expense of Arbitration, and Ambiguity Plaintiff also opposes Defendant’s motion on the grounds that: (1) the arbitration provision is unenforceable because of the nature of discovery favors the Defendant; (2) Bermuda arbitration is likely to be prohibitively expensive; and (3) the arbitration provision is unclear and ambiguous and should therefore be considered permissive, not mandatory. As to the first two arguments, Plaintiff has failed to cite a single case holding that either unfavorable discovery procedures or the prospect of prohibitive costs constitute defenses pursuant to the Convention. [DE 11]. Meanwhile, at least two judges in this district have expressly rejected the “prohibitive costs” defense recognized under the FAA in the context of the Convention. See Bulgakova v. Carnival Corp., Case No. 09-CV-20023, [DE 16] at *3-4 (S.D.Fla. June 22, 2009)" }, { "docid": "9483217", "title": "", "text": "of terrorism.” Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163, 167 (D.D.C.2010) (citing 28 U.S.C. § 1605A(c)). Over the past three years, FSIA courts have resumed awarding punitive damages pursuant to this statute — a trend aided by the NDAA’s provision for retroactive application of § 1605A. See NDAA § 1083(c)(2)-(3) (permitting retroactive application of § 1605A to cases concluded under prior exception). In awarding damages following passage of the NDAA, courts have generally identified the Flatow Method as the procedure that best serves the retribution and deterrence interests that Congress sought to promote in enacting the 2008 Amendments. See In re Terrorism Litig., 659 F.Supp.2d at 61 (holding that, post-NDAA, courts “reaffirm! ] the principles first articulated in Flatow with respect to awards of punitive damages” under FSIA). Just as it was prior to Cicippio-Puleo, current judicial assessments of punitive damages in state-sponsored terrorism cases involve two figures: the amount that a foreign state annually provides in support of terrorist activities, known as the multiplicand, and the multiplier that FSIA courts deem necessary to deter future conduct. As seen in one recent case: “[T]he Court chooses to take the mean of the range’s two extremes ($50 million and $150 million) and multiply it ($100 million) by three. The result, as an award of $300 million, appears fitting.” Heiser v. Islamic Republic of Iran, 659 F.Supp.2d 20, 30 (D.D.C.2009) (“Heiser II”)-, see also, e.g., Brewer v. Islamic Republic of Iran, 664 F.Supp.2d 43, 58-59 (D.D.C.2009) (multiplying $100 million times 3 to award $300 million in punitive damages). Thus, today the Flatow Method is “well settled case law on the methodology by which punitive-damage awards in FSIA cases are calculated.” Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 90 (D.D.C.2010). B. Recent Supreme Court Jurisprudence on Punitive Damages Outside the limited arena covered by federal statutes, development of the law of punitive damages has historically been left to the States, whose legislatures and courts have passed laws and developed principles concerning such sanctions. See BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568, 116 S.Ct. 1589, 134" }, { "docid": "7387922", "title": "", "text": "entitled to compensatory damages under Israeli law; however, there is insufficient evidence that Yael’s family members are entitled to compensatory damages under Israeli law. III. FINDINGS OF FACT Under the FSIA, a court cannot simply enter default judgment; rather, out of respect for the principle of sovereign immunity, it must ensure that the plaintiffs have established their claim or right to relief by evidence that is satisfactory to the court. 28 U.S.C. § 1608(e); Taylor v. Islamic Republic of Iran, 811 F.Supp.2d 1, 6 (D.D.C.2011). Courts are therefore bound by a duty to scrutinize the plaintiffs’ allegations, and courts may not simply accept a complaint’s unsupported allegations as true. Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163, 171 (D.D.C.2010). FSIA courts may rely upon traditional forms of evidence — testimony and documentation — and plaintiffs may also submit evidence in the form of affidavits. Blais v. Islamic Republic of Iran, 459 F.Supp.2d 40, 53 (D.D.C.2006) (citing Bodoff v. Islamic Republic of Iran, 424 F.Supp.2d 74, 82 (D.D.C.2006)). Additionally, a FSIA court may “ ‘take judicial notice of related proceedings and records in cases before the same court.’ ” Valore v. Islamic Republic of Iran, 700 F.Supp.2d, 52, 59 (D.D.C.2010) (quoting Brewer v. Islamic Republic of Iran, 664 F.Supp.2d 43, 50-51 (D.D.C.2009)). Here, plaintiffs rely on judicial notice, documentary, and affidavit evidence in support of their motion for default judgment. A. Judicial Notice of Prior Related Cases Under the Federal Rules of Evidence, courts are permitted to take judicial notice of facts “not subject to reasonable dispute” where those facts are either “generally known within the territorial jurisdiction” or are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). This rule permits courts to take judicial notice of court records in related proceedings. 29 Am.Jur.2d Evidence § 151 (2010); see also Booth v. Fletcher, 101 F.2d 676, 679 n. 2 (D.C.Cir.1938) (“A court may take judicial notice of, and give effect to, its own records in another but interrelated proceeding....”); 2 McCormick on Evid. § 332 (6th ed.2009) (noting that the" }, { "docid": "7387923", "title": "", "text": "judicial notice of related proceedings and records in cases before the same court.’ ” Valore v. Islamic Republic of Iran, 700 F.Supp.2d, 52, 59 (D.D.C.2010) (quoting Brewer v. Islamic Republic of Iran, 664 F.Supp.2d 43, 50-51 (D.D.C.2009)). Here, plaintiffs rely on judicial notice, documentary, and affidavit evidence in support of their motion for default judgment. A. Judicial Notice of Prior Related Cases Under the Federal Rules of Evidence, courts are permitted to take judicial notice of facts “not subject to reasonable dispute” where those facts are either “generally known within the territorial jurisdiction” or are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). This rule permits courts to take judicial notice of court records in related proceedings. 29 Am.Jur.2d Evidence § 151 (2010); see also Booth v. Fletcher, 101 F.2d 676, 679 n. 2 (D.C.Cir.1938) (“A court may take judicial notice of, and give effect to, its own records in another but interrelated proceeding....”); 2 McCormick on Evid. § 332 (6th ed.2009) (noting that the principle permitting courts to take judicial notice of current proceedings “is equally applicable to matters of record in the proceedings in other cases in the same court”). Because of the multiplicity of FSIA-related litigation, courts in this District have frequently taken judicial notice of earlier, related proceedings. See, e.g., Murphy v. Islamic Republic of Iran, 740 F.Supp.2d 51, 58 (D.D.C.2010); Valore, 700 F.Supp.2d at 59-60; Brewer, 664 F.Supp.2d at 50-51 (D.D.C.2009). A difficult issue arises concerning judicial notice of related proceedings with regard to courts’ prior factual findings. While such findings in a prior proceeding are “capable of accurate and ready determination” from judicial records, Fed.R.Evid. 201(b), it cannot be said that these same findings are “not subject to reasonable dispute.” Id. Specifically, such findings represent merely a court’s probabilistic determination as to what happened, rather than a first-hand account of the actual events. As such, they constitute hearsay, and thus are considered inadmissible. Athridge v. Aetna Cas. & Sur. Co., 474 F.Supp.2d 102, 110 (D.D.C.2007) (citing United States v. Jones, 29 F.3d 1549, 1554" }, { "docid": "4223759", "title": "", "text": "remedy to be employed sparingly. Id.; Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 2008 WL 2074397, 2008 U.S. Dist. LEXIS 39630 (M.D.Fla. May 15, 2008) (citing U.S. v. Bailey, 288 F.Supp.2d 1261, 1267 (M.D.Fla.2003)). For example, “it is an improper use of the motion to reconsider to ask the Court to rethink what the Court ... already thought through — rightly or wrongly.” In re Garcia, 2002 WL 32372583, *1 (cites and quotes omitted). Moreover, Rule 59(e) may not be used “to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir.2005). Keeping these principles in mind, I now turn to the specific matters raised in Plaintiffs motion. III. Analysis Because Plaintiff has failed to demonstrate that the unequal bargaining power complained of in this particular case constitutes a valid defense pursuant to the Convention, reconsideration is not warranted. As I noted in my Order Compelling Arbitration, the Eleventh Circuit has previously held that the same type of unequal bargaining power complained of here — i.e., where a multinational cruise line presents a foreign seafarer with an employment contract on a “take it or leave it” basis — does not “fit within the limited scope of defenses” to the enforceability of an arbitration agreement provided for by the Convention. [DE 23, p. 7] (quoting Bautista v. Star Cruises, 396 F.3d 1289 (11th Cir.2005)). Thus, even assuming the existence of a bargaining advantage, Plaintiff has failed to establish that the disparity complained of in this case constitutes a defense under the Convention, regardless of whether it implicates the UNIDROIT Principles referenced by Plaintiff. See Bautista, 396 F.3d at 1302; Koda v. Carnival Cruise Lines, Inc., Case No.: 06-CV-21088, [DE 47] at *2 (S.D.Fla. Sept. 7, 2007) (Hoeveler, J.) (noting that UNIDROIT Principles regarding bargaining power are not controlling in cases where enforcement of an arbitration agreement is sought pursuant to the Convention); see also Polychronakis v. Celebrity Cruises, Inc., 2008 WL 5191104, *3 n. 2 (S.D.Fla. Dec." }, { "docid": "2362398", "title": "", "text": "least two judges in this district have expressly rejected the “prohibitive costs” defense recognized under the FAA in the context of the Convention. See Bulgakova v. Carnival Corp., Case No. 09-CV-20023, [DE 16] at *3-4 (S.D. Fla. June 22, 2009) (Seitz, J.) (refusing to apply FAA prohibitive costs defense in context of the Convention and noting that courts “cannot lightly transpose defenses recognized under the FAA to the ‘unique circumstances of foreign arbitration’ ”) (citing Bautista, 396 F.3d at 1302); Koda v. Carnival Cruise Lines, Inc., Case No.: 06-CV-21088, [DE 38] at *6-7 (S.D.Fla. Mar. 30, 2007) (Hoeveler, J.) (acknowledging expenses and burdens that would be imposed upon Plaintiff as a result of foreign arbitration but noting that the court was “constrained by the precedent set in this Circuit.”). Because Plaintiff has failed to demonstrate how the prohibitive costs it alleges constitute a defense under the Convention, the potential financial hardship cannot invalidate the agreement to arbitrate. Bautista also concluded that traditional principles of procedural unconscionability (e.g., unequal bargaining power) do not “fit within the limited scope of defenses” to the enforceability of an arbitration agreement provided for by the Convention. Bautista, 396 F.3d at 1302 (concluding that “[w]hile it is plausible that economic hardship might make a prospective [ ] seaman susceptible to a hard bargain during the hiring process, Plaintiffs have not explained how this makes for a defense under the Convention”). Thus, even assuming the existence of a bargaining advantage, Plaintiff has failed to establish that the disparity complained of constitutes a defense under the Convention. See Bautista, 396 F.3d at 1302; Koda v. Carnival Cruise Lines, Inc., Case No.: 06-CV-21088, [DE 47] at *2 (S.D.Fla. Sept. 7, 2007) (Hoeveler, J.) (noting that UNIDROIT Principles regarding bargaining power are not controlling in cases where enforcement of an arbitration agreement is sought pursuant to the Convention); see also Polychronakis v. Celebrity Cruises, Inc., 2008 WL 5191104, *3 n. 2 (S.D.Fla. Dec. 10, 2008) (King, J.) (concluding that traditional principles of unconscionability and unequal bargaining power were not valid defenses pursuant to the Convention, even where Plaintiff was required" }, { "docid": "22784469", "title": "", "text": "upon application of any interested person.” Intel reasons that “[t]he class of private parties qualifying as ‘interested persons’ for [service] purposes must of course be limited to litigants, because private parties ... cannot serve ‘process’ unless they have filed suit.” Brief for Petitioner 27 (emphasis in original). Section 1696(a), however, is not limited to service of process; it allows service of “any document” issued in connection with a foreign proceeding. As the Government points out by way of example: “[I]f the European Commission’s procedures were revised to require a complainant to serve its complaint on a target company, but the complainant’s role in the Commission’s proceedings otherwise remained unchanged, [§ ]1696 would authorize the district court to provide that ‘interested [person]’ with assistance in serving that document.” Brief for United States as Amicus Curiae 20, n. 11. Section 1782(a) instructs that a district court’s discovery order “may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing ... [or may be] the Federal Rules of Civil Procedure.” This mode-of-proof-taking instruction imposes no substantive limitation on the discovery to be had. Most civil-law systems lack procedures analogous to the pretrial discovery regime operative under the Federal Rules of Civil Procedure. See ALI, ALI/Unidroit Principles and Rules of Transnational Civil Procedure, Proposed Final Draft, Rule 22, Comment R-22E, p. 118 (2004) (“Disclosure and exchange of evidence under the civil-law systems are generally more restricted, or nonexistent.”); Hazard, Discovery and the Role of the Judge in Civil Law Jurisdictions, 73 Notre Dame L. Rev. 1017, 1018-1019 (1998) (same). See also Smit, Recent Developments 235, n. 93 (“The drafters [of §1782] were quite aware of the circumstance that civil law systems generally do not have American type pretrial discovery, and do not compel the production of documentary evidence.”), See Smit, American Assistance to Litigation in Foreign and International Tribunals: Section 1782 of Title 28 of the U. S. C. Revisited, 25 Syracuse J. Int’l L. & Comm." }, { "docid": "12639846", "title": "", "text": "applicability of section 1610(g). See Anderson v. Hannaford Bros. Co., 659 F.3d 151, 158 n. 5 (1st Cir.2011) (reiterating the basic rule that an argument not raised before the district court is deemed waived); N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 45 (1st Cir.2001) (“There are few principles more securely settled in this court than the principle which holds that, absent exceptional circumstances, an appellant cannot raise an argument for the first time in a reply brief.”). B. TRIA Nonetheless, under certain circumstances, TRIA permits the attachment of property that might otherwise be immune under the FSIA. See Bennett v. Islamic Rep. of Iran, 618 F.3d 19, 21 (D.C.Cir.2010). The relevant section of TRIA provides that “[n]otwithstanding any other provision of law ..., a person [who] has obtained a judgment against a terrorist party on a claim based upon an act of terrorism” may attach and execute on “the blocked assets of that terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party)” in order to satisfy the judgment. TRIA § 201(a). TRIA thereby allows a person to circumvent the normal process for attaching assets that are blocked under a sanctions program, which entails obtaining a license from OFAC. See, e.g., 31 C.F.R. §§ 535.201, 535.310, 515.201, 515.310, 594.201, 594.312. There exists some debate as to whether TRIA preempts state property law and whether the phrase “assets of that terrorist party” in section 201(a) means that the terrorist party must actually own the assets. Compare Hausler v. JPMorgan Chase Bank, N.A., 845 F.Supp.2d 553, 562-68 (S.D.N.Y.2012), and Hausler v. JP Morgan Chase Bank, N.A., 740 F.Supp.2d 525, 529-39 (S.D.N.Y.2010), with Calderon-Cardona v. JPMorgan Chase Bank, N.A., 867 F.Supp.2d 389, 399-405 (S.D.N.Y.2011). But even if we assume, simply for the sake of argument, that the antiquities at issue here qualify as “assets of’ Iran under section 201(a), they would also need to be “blocked” in order to fall within TRIA’s scope. See Ministry ofDef. & Support for the Armed Forces of the Islamic Rep. of Iran v. Elahi, 556 U.S. 366, 369, 129" }, { "docid": "9483245", "title": "", "text": "preventing similar heinous conduct in the future. In recent cases, however, the Supreme Court has recognized that these justifications are often countered — and thus constrained — by other interests, such as an individual’s right to expect consistent and non-excessive punishments (embodied by the Supreme Court’s Due Process jurisprudence), or the Court’s responsibility to fill the gaps in an area of law in which it is the sole authority (embodied by the Exxon decision in the field of maritime law.) These interests, however, are not implicated in the FSIA context, and courts therefore should continue to adhere to methods designed to impose optimal sanctions when faced with actors deliberately undertaking some of the most evil and inhuman acts imaginable. The Court thus holds that its established approach to assessing punitive awards in state-sponsored terrorism cases under the FSIA should remain in place, and expresses hope that the sanction it issues today will play a measurable role in changing the conduct of Iran — and other supporters of international terrorism — in the future. A separate Order and Judgment consistent with these findings shall issue this date. . References to \"Hamas” are to \"Harakat alMuqawama al-Islamiyya, the jihadist Palestinian militia\" generally known by that name. Sisso v. Islamic Republic of Iran, 448 F.Supp.2d 76, 79 (D.D.C.2006). . Under the prior state-sponsored terrorism exception, \"punitive damages were not available against foreign states.” Beer I, 574 F.Supp.2d at 14. . Principles of finality would normally bar a second suit against defendants for the same events. However, when Congress passed the current state-sponsored terrorism exception it also created a provision that permits plaintiffs with existing suits to bring subsequent actions under the new exception. In re Islamic Republic of Iran Terrorism Litig., 659 F.Supp.2d 31, 65 (D.D.C.2009). . See Beer II, 2010 WL 5105174 at *1-2, 2010 U.S. Dist. LEXIS 129953 at *4 (collecting cases in which Dr. Clawson is described as \"an expert on Iranian affairs and international terrorism”). . Because the Court concludes that the Supreme Court’s punitive damage jurisprudence has no effect on the procedures employed by the FSIA courts, it" }, { "docid": "4223760", "title": "", "text": "previously held that the same type of unequal bargaining power complained of here — i.e., where a multinational cruise line presents a foreign seafarer with an employment contract on a “take it or leave it” basis — does not “fit within the limited scope of defenses” to the enforceability of an arbitration agreement provided for by the Convention. [DE 23, p. 7] (quoting Bautista v. Star Cruises, 396 F.3d 1289 (11th Cir.2005)). Thus, even assuming the existence of a bargaining advantage, Plaintiff has failed to establish that the disparity complained of in this case constitutes a defense under the Convention, regardless of whether it implicates the UNIDROIT Principles referenced by Plaintiff. See Bautista, 396 F.3d at 1302; Koda v. Carnival Cruise Lines, Inc., Case No.: 06-CV-21088, [DE 47] at *2 (S.D.Fla. Sept. 7, 2007) (Hoeveler, J.) (noting that UNIDROIT Principles regarding bargaining power are not controlling in cases where enforcement of an arbitration agreement is sought pursuant to the Convention); see also Polychronakis v. Celebrity Cruises, Inc., 2008 WL 5191104, *3 n. 2 (S.D.Fla. Dec. 10, 2008) (King, J.) (concluding that traditional principles of unconscionability and unequal bargaining power were not valid defenses pursuant to the Convention, even where Plaintiff was required to execute the pertinent agreements when he “was well into the voyage, at sea, and in the midst of performing his duties ... after any opportunity for negotiation or disembarkation had passed.”). IV. Conclusion Based on the foregoing, it is hereby ORDERED AND ADJUDGED that: 1. Plaintiffs Motion for Reconsideration [DE 24] is DENIED. 2. Plaintiffs Motion for Hearing [DE 25] is DENIED. 3. This case shall remain CLOSED. . Plaintiff also filed an unopposed motion for leave to file a surreply law following Defendant’s with leave of court. See [DE 22]. I deny the aforementioned motion as moot and note that the matters addressed in Plaintiff’s sur-reply have no bearing on my analysis of Defendant's Motion to Compel Arbitration. . See 46 U.S.C. § 30101 et seq. (2009). . The Convention on Recognition and Enforcement of Foreign Arbitral Awards, 21 U.S.T. 2517, 330 U.N.T.S. 3 will be" }, { "docid": "4513388", "title": "", "text": "applied by a federal court in this country. See, e.g., Ministry of Def. & Support for Armed Forces of Islamic Repub. of Iran v. Cubic Def. Sys., 385 F.3d 1206, 1223-24 (9th Cir.2004) (discussing FSIA House Report for the proposition that “held for its own account” means “used or held in connection with central banking activities”), vacated on other grounds sub nom., Ministry of Def. & Support for Armed Forces of Islamic Repub. of Iran v. Elahi, 546 U.S. 450, 126 S.Ct. 1193, 163 L.Ed.2d 1047 (2006); Bank of Credit & Commerce Int’l (Overseas) Ltd. v. State Bank of Pak, 46 F.Supp.2d 231, 239 (S.D.N.Y.1999) (“Pursuant to 28 U.S.C. § 1611, the property of a foreign central bank held ‘for its own account’ is immune from attachment in the United States. Funds are considered to be ‘held for a central bank’s own account’ if they are used to perform functions that are normally understood to be the functions of a nation’s central bank, and are not utilized in commercial activities.”), vacated on other grounds, 273 F.3d 241 (2d Cir.2001); Banco Central de Reserva del Peru v. Riggs Nat’l Bank of Washington, D.C., 919 F.Supp. 13, 17 (D.D.C.1994) (citing FSIA House Report); Banque Compafina v. Banco de Guatemala, 583 F.Supp. 320, 322 (S.D.N.Y.1984) (same). A second proposed definition of central bank property “held for its own account” is offered by the FRBNY, appearing as amicus curiae. FRBNY suggests an alternative definition drawn from the common law of bank deposits. FRBNY Amicus Br. 14 (citing Clackamas Gastroenterology Assocs. P.C. v. Wells, 538 U.S. 440, 447, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003) (“[C]ourts will look to the common law to fill gaps in statutory text, particularly when an undefined term has a settled meaning at common law.”)). Under the so-called “plain language test,” property of a central bank is “held for its own account” if it is in an account in the central bank’s name because “[u]nder fundamental banking law principles, a positive balance in a bank account reflects a debt from the bank to the depositor” and no one else. Id." }, { "docid": "2593882", "title": "", "text": "will be entered in favor of plaintiffs and against defendants. Plaintiffs claims, under federal or state law, will be referred to a special master, who will receive evidence and prepare proposed findings and recommendations for the disposition of each individual claim in a manner consistent with this opinion. A separate order will be issued on this date. . The Court enters the findings and conclusions below pursuant to 28 U.S.C. § 1608(e). That provision requires plaintiffs under the FSIA to \"establish [their] claim or right to relief by evidence satisfactory to the court” even where, as here, defendants have failed to appear after proper service. . \"Tr. Vol.” refers to the transcript for each day of the bench trial in this case, beginning on October 25, 2010. Accordingly \"Tr. Vol. I\" refers to the transcript for the first day of testimony on October 25, 2010, “Tr. Vol. II” refers to the transcript of day two of the bench trial, and so on. \"Ex.” refers to those exhibits admitted into evidence during the trial. . For plaintiffs' federal claims under § 1605A(c), \"[t]he Court is presented with the difficulty of evaluating these claims under the FSIA-created cause of action, which does not spell out the elements of these claims that the Court should apply.” Valore, 700 F.Supp.2d at 75. Hence, the Court \"is forced ... to apply general principles of tort law — an approach that in effect looks no different from one that explicitly applies federal common law”; but \"because these actions arise solely from statutory rights, they are not in theory matters of federal common law.” Heiser v. Islamic Republic of Iran, 659 F.Supp.2d 20, 24 (D.D.C.2009); see also Bettis v. Islamic Republic of Iran, 315 F.3d 325, 333 (D.C.Cir.2003) (discussing that the term \"federal common law” under the FSIA \"seems to us to be a misnomer” because \"these actions are based on statutory rights”). District courts thus look to Restatements, legal treatises, and state decisional law \"to find and apply what are generally considered to be the well-established standards of state common law, a method of evaluation which" }, { "docid": "2362399", "title": "", "text": "limited scope of defenses” to the enforceability of an arbitration agreement provided for by the Convention. Bautista, 396 F.3d at 1302 (concluding that “[w]hile it is plausible that economic hardship might make a prospective [ ] seaman susceptible to a hard bargain during the hiring process, Plaintiffs have not explained how this makes for a defense under the Convention”). Thus, even assuming the existence of a bargaining advantage, Plaintiff has failed to establish that the disparity complained of constitutes a defense under the Convention. See Bautista, 396 F.3d at 1302; Koda v. Carnival Cruise Lines, Inc., Case No.: 06-CV-21088, [DE 47] at *2 (S.D.Fla. Sept. 7, 2007) (Hoeveler, J.) (noting that UNIDROIT Principles regarding bargaining power are not controlling in cases where enforcement of an arbitration agreement is sought pursuant to the Convention); see also Polychronakis v. Celebrity Cruises, Inc., 2008 WL 5191104, *3 n. 2 (S.D.Fla. Dec. 10, 2008) (King, J.) (concluding that traditional principles of unconscionability and unequal bargaining power were not valid defenses pursuant to the Convention, even where Plaintiff was required to execute the pertinent agreements when he “was well into the voyage, at sea, and in the midst of performing his duties ... after any opportunity for negotiation or disembarkation had passed”). B. Thomas Analysis Plaintiff further argues that the Bermuda choice-of-law provision contained in the Principal Terms renders the agreement to arbitrate unenforceable because the two clauses operate in tandem to impermissibly limit Plaintiffs U.S. statutory and common law remedies, relying on Thomas v. Carnival Corp., 573 F.3d 1113 (11th Cir.2009). There is no dispute that the Principal Terms, as written, would require Plaintiff to arbitrate her claims in Bermuda applying Bermuda substantive law. However, the parties disagree as to whether the arbitration clause is void as a matter of public policy given Defendant’s purported “stipulation” to the applicability of U.S. statutory law in the arbitral forum. Defendant argues that because of its choice-of-law “stipulation,” Thomas does not control, while Plaintiff asserts that the agreement to arbitrate cannot be salvaged. Having considered the relevant submissions and the applicable law, I agree with Plaintiff that" }, { "docid": "22784470", "title": "", "text": "or statement or producing the document or other thing ... [or may be] the Federal Rules of Civil Procedure.” This mode-of-proof-taking instruction imposes no substantive limitation on the discovery to be had. Most civil-law systems lack procedures analogous to the pretrial discovery regime operative under the Federal Rules of Civil Procedure. See ALI, ALI/Unidroit Principles and Rules of Transnational Civil Procedure, Proposed Final Draft, Rule 22, Comment R-22E, p. 118 (2004) (“Disclosure and exchange of evidence under the civil-law systems are generally more restricted, or nonexistent.”); Hazard, Discovery and the Role of the Judge in Civil Law Jurisdictions, 73 Notre Dame L. Rev. 1017, 1018-1019 (1998) (same). See also Smit, Recent Developments 235, n. 93 (“The drafters [of §1782] were quite aware of the circumstance that civil law systems generally do not have American type pretrial discovery, and do not compel the production of documentary evidence.”), See Smit, American Assistance to Litigation in Foreign and International Tribunals: Section 1782 of Title 28 of the U. S. C. Revisited, 25 Syracuse J. Int’l L. & Comm. 1, 13, and n. 63 (1998) (hereinafter Smit, American Assistance) (noting that “[a] similar decision was rendered by the President of the Amsterdam District Court”). A civil-law court, furthermore, might attend to litigant-parity concerns in its merits determination: “In civil law countries, documentary evidence is generally submitted as an attachment to the pleadings of as part of a report by an expert. ... A civil law court generally rules upon the question of whether particular documentary evidence may be relied upon only in its decision on the merits.” Smit, Recent Developments 235-236, n. 94. Among its proposed rules, the dissent would'exclude from §1782(a)’s reach discovery not available “under foreign law” and “under domestic law in analogous circumstances.” Post, at 270. Because comparison of systems is slippery business, the dissent’s rule is infinitely easier to state than to apply. As the dissent’s examples tellingly reveal, see post, at 267-268, a foreign proceeding may have no direct analogue in our legal system. In light of the variety of foreign proceedings resistant to ready classification in domestic terms," }, { "docid": "16471550", "title": "", "text": "MEMORANDUM AND ORDER LAMBERTH, District Judge. This matter comes before the Court on Garnishee-Defendant FMC Corporation’s (“FMC”) Motion to Dissolve the Writ of Attachment levied upon “any money, property or credits” FMC owes to Iran. Upon consideration of the motion, the memoran-da in support of and in opposition thereto, the applicable law, and for the reasons set forth below, the Court hereby GRANTS Garnishee-Defendant’s Motion and QUASHES the Writ of Attachment issued. Plaintiff seeks to attach an arbitration award issued in favor of Iran by the Iran-United States Claims Tribunal. See FMC Corporation v. The Islamic Republic of Iran, Award No. 292-353-2 (Iran-United States Claims Tribunal February 12, 1987) (award arising out of dispute over contract for military equipment). Plaintiff contends that two provisions of the Foreign Sovereign Immunities Act (“FSIA”) authorize this action. 28 U.S.C.A. § 1610(a)(7) & (f)(1)(A) (West Supp.1999). Section 1610(a)(7) of the FSIA authorizes the attachment of property of a foreign state that is “used for commercial activity in the United States” to satisfy judgments awarded under the FSIA’s state-sponsored terrorism exception, Section 1605(a)(7). As explained below, plaintiffs claim under this provision fails because the statute of limitations for enforcing the award has expired, thus rendering the award null and void. The Algiers Accords are not self-executing. See The Islamic Republic of Iran v. United States, Award No. 586-A27-FT, ¶ 8 (Iran-United States Claims Tribunal June 5, 1998) (stating that the terms “final and binding” in an international arbitration agreement do not mean an award is self-executing); Iran Aircraft, 980 F.2d at 144 (noting that the Accords contain no mechanism for direct enforcement of awards issued against U.S. nationals); see also Islamic Republic of Iran v. Boeing, 771 F.2d 1279, 1283 (9th Cir.1985). Rather, enforcement of foreign arbitral awards, such as Tribunal awards, are governed by the New York Convention and Chapter II of the Federal Arbitration Act, 9 U.S.C.A. §§ 201-208 (West 1999) (“Arbitration Act”), which implements provisions of the Convention into domestic law. Ministry of Defense v. Gould, 887 F.2d 1357, 1362 (9th Cir.1989). Notably, the Arbitration Act requires parties to confirm arbitration awards" }, { "docid": "7302071", "title": "", "text": "920, 924 n. 5 (11th Cir.2003) (\"Facial attacks challenge subject matter jurisdiction based on the allegations in the complaint, and the district court takes the allegations as true in deciding whether to grant the motion.”) (internal citations omitted). The district court’s conclusion as to whether the defendant enjoys sovereign immunity under the FSIA is a question of law that we review de novo. Venus Lines Agency v. CVG Industria Venezolana De Aluminio, C.A., 210 F.3d 1309, 1311 (11th Cir.2000). . The contracting party was technically the Honduran Armed Forces, an agency of the Honduran Government. . This decision was affirmed by the Honduran appellate court on March 24, 2000. The criminal court issued a final dismissal in the case on January 15, 2001, which was also affirmed by the appellate court, on June 7, 2001. .This appears to be a typographical error as the bailment contract is dated July 19, 1985, not July 19, 1986. . The parties do not dispute that this action is based upon acts taken outside the United States. Nor do they contest that Mr. Arita (in his official capacity) and the Procuraduría General qualify as \"foreign state[s]” within the meaning of the FSIA. See 28 U.S.C. § 1603. . Other circuits have consistently held that contracts to supply the military with equipment and supplies are \"commercial.” Globe Nuclear Servs. & Supply, Ltd. v. AO Techsnabexport, 376 F.3d 282, 289 (4th Cir.2004) (contract of Russian Federation to supply private company with uranium hexaflouride extracted from nuclear weapons was \"commercial”); Ministry of Def. v. Cubic Def. Syst., Inc., 385 F.3d 1206, 1220 (9th Cir.2004) (government engaged in “commercial activity” by contracting for sale and servicing of an Air Combat Maneuvering Range); McDonnell Douglas Corp. v. Islamic Republic of Iran, 758 F.2d 341, 349 (8th Cir.1985) (contract to supply Iran with military aircraft parts was a \"commercial activity”). See also Virtual Def. & Dev. Int’l Inc. v. Republic of Moldova, 133 F.Supp.2d 1, 4 (D.D.C.1999) (contract for sale of MiG-29 fighters was commercial activity for purposes of FSIA). . In Weltover, in interpreting the relevant clause, the Supreme" }, { "docid": "4513387", "title": "", "text": "are property of the BCRA “held for its own account” under § 1611(b)(1), we must now decide whether the FRBNY Funds meet that test. The definition of the phrase “held for its own account” in § 1611(b)(1) is a matter of first impression in this Circuit. See EM I, 473 F.3d at 485 (declining to “decide which interpretation of § 1611(b)(l)’s ‘held for its own account’ language is correct”). The parties and amici propose three competing definitions. First, BCRA argues that central bank property is “held for its own account” if that property is used for “traditional central banking activities.” BCRA Br. 37. This appears to be the test adopted by Congress in the FSIA, see FSIA House Report 31, reprinted in 1976 U.S.C.C.A.N. at 6630 (Funds “ ‘held’ for the bank’s or authority’s ‘own account’ ... [include] funds used or held in connection with central banking activities, as distinguished from funds used solely to finance the commercial transactions of other entities or of foreign states”), and apparently is the only test ever to be applied by a federal court in this country. See, e.g., Ministry of Def. & Support for Armed Forces of Islamic Repub. of Iran v. Cubic Def. Sys., 385 F.3d 1206, 1223-24 (9th Cir.2004) (discussing FSIA House Report for the proposition that “held for its own account” means “used or held in connection with central banking activities”), vacated on other grounds sub nom., Ministry of Def. & Support for Armed Forces of Islamic Repub. of Iran v. Elahi, 546 U.S. 450, 126 S.Ct. 1193, 163 L.Ed.2d 1047 (2006); Bank of Credit & Commerce Int’l (Overseas) Ltd. v. State Bank of Pak, 46 F.Supp.2d 231, 239 (S.D.N.Y.1999) (“Pursuant to 28 U.S.C. § 1611, the property of a foreign central bank held ‘for its own account’ is immune from attachment in the United States. Funds are considered to be ‘held for a central bank’s own account’ if they are used to perform functions that are normally understood to be the functions of a nation’s central bank, and are not utilized in commercial activities.”), vacated on other grounds, 273" }, { "docid": "5121739", "title": "", "text": "151 (2010); see also Booth v. Fletcher, 101 F.2d 676, 679 n. 2 (D.C.Cir.1938) (“A court may take judicial notice of, and give effect to, its own records in another but interrelated proceeding.... ”); 2 McCormick on Evid. § 332 (6th ed. 2009) (noting that principle permitting courts to take judicial notice of current proceeding “is equally applicable to matters of record in the proceedings in other eases in the same court”). Because of the multiplicity of FSIA-related litigation in this jurisdiction, Courts in this District have thus frequently taken judicial notice of earlier, related proceedings. See, e.g., Murphy v. Islamic Republic of Iran, 740 F.Supp.2d 51, 58-59, No. 06 Civ. 596, 2010 WL 3732024, at *4, 2010 U.S. Dist. LEXIS 101250, at *11 (D.D.C. Sep. 24, 2010); Brewer v. Islamic Republic of Iran, 664 F.Supp.2d 43, 50-51 (D.D.C.2009); Heiser I, 466 F.Supp.2d at 267. The difficult issue concerning judicial notice of prior proceedings is the effect of that notice. In particular, a significant question arises concerning whether courts taking notice of prior proceedings may do so for the purpose of accepting the truth of the earlier court’s findings and conclusions. While the D.C. Circuit has not had occasion to consider this issue, Courts of Appeals in several circuits have considered the issue and' — while not issuing any per se rule — have generally agreed that judicial notice of such findings and conclusions is improper. See Murphy, 740 F.Supp.2d at 58-59, 2010 WL 3732024 at *4, 2010 U.S. Dist. LEXIS 101250 at *11 (collecting cases). The rationale supporting this consensus is straightforward: Suppose the parties to a case dispute whether a car at issue was blue or red. The Court, based on the evidence before it, makes a finding that the car was blue. While that finding may control the resolution of the dispute before the Court, the finding cannot, in fact, make the car blue. See United States v. Jones, 29 F.3d 1549, 1553 (11th Cir.1994) (“Although these findings [that Jones refused to come to work] support [the judge’s] denial of the motion before him, they do not" }, { "docid": "11306124", "title": "", "text": "Syria as a terrorist state. Defs.’ Mot. at 7. The court need not linger long on these arguments, for as the defendant concedes, binding law in this circuit is not in its favor. Id. at 8 (citing Price I, 294 F.3d at 99). Indeed, as the court stated in Price I, “the Constitution imposes no limitation on the exercise of personal jurisdiction by the federal courts over [foreign sovereigns.]” 294 F.3d at 86. In addition to their due process claims under American law, the defendant generally claims that this court’s exercise of jurisdiction over Syria “is unreasonable and impermissible under applicable principles of international law.” .Def.’s Mot. at 9 (citing RESTATEMENT (THIRD) FOREIGN RELATIONS LAW OF THE UNITED STATES (1986) at § 403). In Flatow v. Islamic Republic of Iran, a case involving Iran’s provision of material support to a terrorist group that engaged in homicide bombings, Iran raised a similar argument. 999 F.Supp. 1, 15 n. 7 (D.D.C. 1998). The court in that case limited its analysis to a determination that Congress intended extraterritorial application of § 1605(a)(7), but also noted that jurisdiction over Iran would be consistent with international law. Id. As the court stated, “extraterritorial application of the state sponsored terrorism exceptions is consistent with international law; three of the five bases for the exercise of extraterritorial jurisdiction are implicated in actions by United States victims of foreign state sponsored terrorism: passive personality (nationality of victim), protective (national security interests), and universal (subject to jurisdiction wherever the offender may be found).” Id. (citing RESTATEMENT (THIRD) FOREIGN RELATIONS LAW OF THE UNITED STATES (1986) at §§ 402(2)-(3), 403, 423). This court sees no reason to depart from the analysis in Flatow. Accordingly, assuming arguendo that the defendant may raise principles of international law as a defense to personal jurisdiction, the court determines that it can maintain jurisdiction over Syria consistent with the principles of international law governing extraterritorial jurisdiction. Id. C. The Plaintiffs State a Claim On Which Relief Can Be Granted 1. Legal Standard for Rule 12(b)(6) Motion to Dismiss A Rule 12(b)(6) motion to dismiss tests" } ]

[ { "docid": "16950893", "title": "", "text": "no need to discuss the matter extensively. After all, when the court ruled that further monitoring would be superfluous, the litigation had been winding down for five years, the Commonwealth was in compliance, the decree had been truncated, and the case was being relegated to inactive status. Without wishing unduly to prolong the discussion, we add one further observation: by tradition and almost by necessity, district judges have great discretion in deciding what claimed legal services should be compensated, see, e.g., Phetosomphone v. Allison Reed Group, Inc., 984 F.2d 4, 6 (1st Cir.1993); Lipsett v. Blanco, 975 F.2d 934, 939-40 (1st Cir.1992); Foley v. City of Lowell, 948 F.2d 10, 18-19 (1st Cir.1991), and there are times when an advance ruling by the trial court provides helpful guidance. So here, in regard to the gratuitous nature of future monitoring. Ill Another disagreement between the parties concerns the hourly rates that plaintiffs’ counsel should earn for work done from November 1990 to June 1992. Each of plaintiffs’ two attorneys submitted affidavits reciting their qualifications and attesting to fees charged and paid at $195 per hour (lead counsel) and $125 per hour (associate counsel), respectively. The district court did not succumb to these importunings, instead awarding lead counsel, Stephen Schwartz, $120/hr. for core legal work, and associate counsel, Cathy Costanzo, $80/hr. for such work. For non-core work, the court awarded lead counsel $80/hr. and associate counsel exactly half that rate. Plaintiffs assign error to the lower court’s refusal to accept what plaintiffs term their lawyers’ “established billing rates.” The standards governing hourly rates applicable to shifted legal fees are hardly models of precision. The Supreme Court has endorsed the use of market rates as a starting point, see Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984), but it also has approved consideration of adjusting factors. See Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 563-65, 106 S.Ct. 3088, 3097-98, 92 L.Ed.2d, 439 (1986); Hensley v. Eckerhart, 461 U.S. 424, 434 n. 9, 103 S.Ct. 1933, 1940 n. 9, 76 L.Ed.2d 40" } ]

[ { "docid": "20317267", "title": "", "text": "Ursic, 719 F.2d at 675 n. 4. The United States Court of Appeals for the Third Circuit also has emphasized various concerns affecting a lodestar determination, including the reputation and status of the attorney and the general quality of a counsel’s experience, knowledge, and legal talent. Lindy I, 487 F.2d at 167; Lindy II, 540 F.2d at 117. Further considerations exist in calculating a lodestar. First, a party must adequately document the hours worked or suffer a reduction in his award request. Hensley, 103 S.Ct. at 1939. Moreover, hours that are not reasonably expended must be excluded from the lodestar. Overstaffed cases that include excessive, redundant, or otherwise unnecessary billed hours cannot be fully compensated. Id. at 1939-40. While duplicative efforts on some matters surely will be helpful to trial counsel, not all such efforts are reasonably necessary and recoverable under the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988. M.S.R. Imports, Inc. v. R.E. Greenspan Co., Inc., 574 F.Supp. 31, 34 (E.D.Pa.1983) (one day assistance of senior co-trial counsel in short, uncomplicated trial excluded from fee award). As the Supreme Court and the Third Circuit have emphasized, the key word in consideration of a fee petition is “reasonable.” Hensley, 103 S.Ct. at 1939; Ursic, 719 F.2d at 678. “Billing judgment” is an important component in setting a fee. “ ‘Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.’ ” Hensley, S.Ct. at 1940, quoting, Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980) (en banc) (emphasis in original); Ursic, 719 F.2d at 678. In a well-reasoned and common-sense opinion, Judge Weis further observed the following: [I]t should be noted that the lodestar computation is a two-edged sword. A fee applicant cannot demand a high hourly rate — which is based on his or her experience, reputation, and a presumed familiarity with the applicable law — and then run up an inordinate amount of time researching the same law. Double dipping, in any form, cannot be condoned. Our cases supply no authority for rewarding non-stop meter running" }, { "docid": "8720058", "title": "", "text": "to such person in an amount equal to the sum of— * * * * * * (3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court. 15 U.S.C. § 1692k(a). The statutory language makes an award of fees mandatory. “Because the FDCPA was violated * * * the statute requires the award of costs and a reasonable attorney’s fee * * * ” Pipiles, 886 F.2d at 28. The reason for mandatory fees is that congress chose a “private attorney general” approach to assume enforcement of the FDCPA. Given the structure of the section, attorney’s fees should not be construed as a special or discretionary remedy; rather, the act mandates an award of attorney’s fees as a means of fulfilling Congress’s intent that the Act should be enforced by debtors acting as private attorneys general. Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir.1991). “Unlike most private tort litigants, [a plaintiff who brings an FDCPA action] seeks to vindicate important * * * rights that cannot be valued solely in monetary terms”, City of Riverside v. Rivera, 477 U.S. 561, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986), and congress has determined that the public as a whole has an interest in the vindication of the statutory rights. Id. The district court found that Tolentino’s counsel normally received rates of $275 per hour for Mr. Edelman and $225 per hour for Combs. The record shows that other courts have awarded fees at those rates in similar types of cases. However, Judge Norgle held that these rates should be reduced in FDCPA cases because [f]ew paying clients would be inclined to pay voluntarily an hourly rate of $275 to seek damages not exceeding $1,000 * * * There is no dispute in the right case and under the appropriate circumstances, counsel for plaintiffs fee would be reasonable at the rate of $275 hourly, as indicated in counsel’s supplemental affidavit. But not in this case, as the court has previously ruled. The Supreme" }, { "docid": "5439671", "title": "", "text": "well as 74.70 hours of Baker’s time. See Berger Aff., Exs. A, B. Of this time, the Court must determine whether any was unreasonably expended. It has become established practice in this Circuit to distinguish between “core” and “non-core” work when determining attorneys’ fees awards. See Brewster v. Dukakis, 3 F.3d 488, 492 n. 4 (1st Cir.1993) (“Core work includes legal research, writing of legal documents, court appearances, negotiations with opposing counsel, monitoring, and implementation of court orders. Non-core work consists of less demanding tasks, including letter writing and telephone conversations.”). Typically, non-core work is compensated at two-thirds of the hourly rate for core work. See Morgan, 915 F.Supp. at 471 (applying a “rough 3/2 ratio” for core versus non-core work). A review of Massachusetts case law under the state Civil Rights Act and other attorneys’ fee-shifting statutes, however, indicates that the Commonwealth does not follow this practice. “Where a request for attorneys’ fees comprises a substantive part of the state-law remedy for a state-law cause of action, the proper rule of decision governing the award is derived from Massachusetts, rather than federal, practice.” Krewson v. City of Quincy, 74 F.3d 15, 17 (1st Cir.1996). In light of this obligation, the Court will not impose upon Massachusetts practice a relatively recent federal court innovation, but will instead calculate the lodestar using an undiluted hourly rate for both core and non-core work. “This interpretation is consistent with the liberal construction which should be afforded civil rights statutes....” Batchelder v. Allied Stores Corp., 393 Mass. 819, 823, 473 N.E.2d 1128, 1131 (1985); accord Krewson, 74 F.3d at 18 (“[AJs a remedial civil rights statute, § 11I is entitled to a more liberal construction of its terms than other fee shifting statutes such as Mass. Gen. L. ch. 93A.”). After careful review of Berger and Baker’s time logs, this Court, again like Harrelson, finds no reason to second-guess their submissions. IY. FEE REDUCTION OR DENIAL Harrelson raises three challenges to the award of attorneys’ fees, each of which will be discussed in turn. A. RESULTS OBTAINED First, Harrelson argues that the amount of" }, { "docid": "5439670", "title": "", "text": "See id. As pointed out in Berger’s affidavit, the hourly rate of $200.00 for an attorney with over twenty-five years of membership in the Massachusetts Bar Association is likely to be on the thrifty side of rates for comparable attorneys in Boston, the place\" where litigation occurred. See id.; see also Guckenberger v. Boston Univ., 8 F.Supp.2d 91, 105 (D.Mass.1998) (Saris, J.) (finding rates for “partners in trial firms with experience in civil rights cases [to be] between $200 and $275 per hour” and noting that “[rjates in excess of $300 per hour for Boston trial attorneys ... have been approved in this District”). In light of these comparisons, the Court, like Harrelson, sees no reason to challenge Connolly and Adao’s proffered figure of $200.00 per hour for Berger’s counsel. With respect to hours billed, “[t]he judge should begin his inquiry with the amount of time documented by the plaintiffs attorney.” Stowe, 417 Mass. at 203, 629 N.E.2d at 307. Berger provides in his affidavit a log detailing 355.70 hours of his own time, as well as 74.70 hours of Baker’s time. See Berger Aff., Exs. A, B. Of this time, the Court must determine whether any was unreasonably expended. It has become established practice in this Circuit to distinguish between “core” and “non-core” work when determining attorneys’ fees awards. See Brewster v. Dukakis, 3 F.3d 488, 492 n. 4 (1st Cir.1993) (“Core work includes legal research, writing of legal documents, court appearances, negotiations with opposing counsel, monitoring, and implementation of court orders. Non-core work consists of less demanding tasks, including letter writing and telephone conversations.”). Typically, non-core work is compensated at two-thirds of the hourly rate for core work. See Morgan, 915 F.Supp. at 471 (applying a “rough 3/2 ratio” for core versus non-core work). A review of Massachusetts case law under the state Civil Rights Act and other attorneys’ fee-shifting statutes, however, indicates that the Commonwealth does not follow this practice. “Where a request for attorneys’ fees comprises a substantive part of the state-law remedy for a state-law cause of action, the proper rule of decision governing the" }, { "docid": "11229495", "title": "", "text": "counsel whose rates are higher than those charged locally. See Gottlieb v. Barry, 43 F.3d 474, 485 n. 8 (1994). . The Supreme Court has rejected the use of multipliers to enhance the lodestar’s hourly rate amount in statutory fee-shifting cases, see City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), but it has not rejected the use of multipliers in common fund cases. While this Court recognizes that much of the Supreme Court's reasoning in Dague is applicable to the use of multipliers in common fund cases as well, the Court points out that it has not set class counsel’s fee with the lodestar method, and has instead merely used the lodestar method as a rough crosscheck of the result reached with the percentage of the fund method and the Johnson factors. . Non-class claimants will not share this burden. The Supplement to the Agreement provides that \"[n]o deductions will be made from any amounts paid to [non-class] Claimants for their pro rata share of attorneys' fees or litigation expenses awarded by the Court pursuant to paragraph 8.1.” (Supp. Agreement ¶ 9.6.3.) . A private attorney’s labor may have increased the amount of a claimant’s award, or the private attorney may have assisted with an appeal of the Special Master’s initial determination. In either instance, the private attorney’s work benefited an individual claimant rather than the class, thus that claimant should bear the cost of that attorney’s services. . The Court recognizes that individual plaintiff's counsel will have far more involvement in the resolution of wrongful death claims under Fund Four, thus these counsel should receive a greater percentage of their bargained for fees. However, class counsel should receive the 13% fee award as compensation for the creation of Fund Four. Thus the Court will reduce private attorney contingency fees for Fund Four by one third (leaving these attorneys with two thirds) to reflect the common benefit services provided by class counsel. . The Court recognizes that these calculations may appear to have a Rube Goldberg quality. However, these mechanisms are necessary to" }, { "docid": "15454503", "title": "", "text": "OPINION MacMAHON, District Judge. In our order of December 29, 1976, we approved the settlement of these derivative and class actions, pursuant to Rules 23(e) and 23.1, Fed.R.Civ.P. We now consider counsel’s applications for an award of attorneys’ fees and disbursements. It is clear in this and other circuits that the proper starting point for an award of counsel fees is the actual time spent by attorneys, multiplied by a reasonable hourly rate to which attorneys of like skill in the area would typically be entitled for a given type of work. See, e. g., City of Detroit v. Grinnell Corp., 495 F.2d 448, 471 (2d Cir. 1974); Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973). With this in mind, we have examined the detailed affidavits of counsel, in which they have indicated their time spent on the various categories of activity. Although the hourly rates awarded are somewhat lower than most of the rates suggested by counsel, and although the “risk factor bonus” is considerably lower than the multiple suggested by counsel of three times the basic award, we do not mean to impugn the integrity or competence of plaintiffs’ counsel. Indeed, we take this opportunity to express our appreciation for what we consider highly professional, quality representation by counsel for all parties, who in this age of seemingly interminable litigation cooperated fully with the court and with each other in bringing these actions to a relatively speedy resolution. Nevertheless, while the Lindy and Grinnell courts did recognize the need to increase basic hourly fees on account of the contingent nature of litigation, those courts also explicitly reminded us of the duty of courts to fix fees with an eye to moderation and to avoid even the appearance of awarding “windfall” fees. This policy is clearly reflected in the recent trend away from awarding fees based on the “contingent fee syndrome,” Grinnell, supra, 495 F.2d at 468, and is directed at alleviating criticism of the legal community because of the appearance, all too often justified, that attorneys in class actions" }, { "docid": "23108340", "title": "", "text": "in isolation. Therefore, in this case of first impression for the Eleventh Circuit, we apply the general intent of the Act and decline to hold that this court may award fees for fees only if the government’s position in the fees litigation was not substantially justified. In upholding the district court’s award to fee counsel, we attempt to make the prevailing party whole by compensating the plaintiffs for the work performed by fee counsel during the district court proceedings and during this appeal. The remedial purpose of EAJA is best served by considering the totality of prelitigation and litigation circumstances in awarding fees. Several courts have awarded fees for time spent in connection with fee and expense applications. Noxell Corp. v. Firehouse No. 1 Bar-B-Que Restaurant, 771 F.2d 521 (D.C.Cir.1984) (hours reasonably devoted to request for fees are com-pensable); Sierra Club v. EPA, 769 F.2d 796 (D.C.Cir.1985) (outside attorney com pensated at reasonable rate for preparation of fee petition); Schuenemeyer v. United States, 776 F.2d 329, 333 (Fed.Cir.1985) (attorney fees incurred in the preparation of fee application are compensable); Tyler, 695 F.2d at 77 (amount of recovery may include time spent preparing and prosecuting motion for attorney fees). In order to grant plaintiffs full vindication of their rights under EAJA, we uphold the district court’s award of attorney fees to fee counsel, Mr. Kline and Ms. Hudsmith. We do not have the issue of the district court’s method of computing fees before us because the government has waived this issue. Consequently, we make no ruling on the district court’s award of an hourly rate above the statutory maximum or its award of a cost of living increase. “In the last analysis, however, the fulfillment of the congressional purpose depends upon the ultimate judgment of the district court, not just the mechanical application of established principles.” Johnson v. University College of the University of Alabama in Birmingham, 706 F.2d 1205, 1211 (11th Cir.1983) (award of attorney fees under Civil Rights Attorneys Fees Awards Act). Like Johnson, the present case has involved several years of litigation resulting in the successful vindication of" }, { "docid": "8801859", "title": "", "text": "with where private, for-profit law firms have established market rates for similar services. Under this approach the rates customarily charged by a firm would presumptively stand as the reasonable rates. The positions of the parties are no doubt affected by the fact that in this case the “prevailing market rate” established by the district court exceeds “any hourly rate at which [Bredhoff & Kaiser] ... has ever billed its regular fee-paying clients.” However, this discrepancy need not exist in every case — under both approaches the touchstone remains the “market value” of the services rendered; any deviation between the court’s and the market’s assessment suggests that one or the other has misvalued the attorneys’ services. The choice between the two methods thus does not involve a categorical choice between higher rates or lower rates, but questions of judicial administration. 1. Congressional Intent As the Supreme Court observed in Blum, “[r]esolution of these ... argu ments begins and ends with an interpretation of the attorney’s fee statute.” “The legislative history,” the Court pointed out, “explains that ‘a reasonable attorney’s fee’ is one that is ‘adequate to attract competent counsel, but ... [that does] not produce windfalls to attorneys.’ ” The “windfall” Congress sought to avoid is the awarding of fees in excess of the rate at which qualified counsel would be willing to represent civil rights claimants who have legitimate grievances. The congressionally-mandated inquiry is thus not into the “true value” or worth of an attorney’s services. Instead, the trial court must ascertain the fee at which competent counsel would be willing to accept meritorious civil rights eases. As this court recently stated in Murray v. Weinberger, “the purpose of the statute [authorizing fee shifting in Title VII cases] is to benefit meritorious claimants — not to subsidize the legal profession.” Although the Supreme Court has not set out the method by which district courts are to determine the hourly rates of attorneys working for profit, the Court in Blum took pains to note that the “prevailing market rate” — that is, the rate “prevailing in the community for similar services" }, { "docid": "11229494", "title": "", "text": "the Jacoby & Meyers claimants) currently total close to $62,000,-000, with over one thousand four hundred claims unresolved, and over one thousand four hundred class claims preliminarily denied. Not only will a large percentage of the unresolved claims likely be approved, but pursuant to the Court's Order Regarding Interpretation of the Agreement, many of the class claims preliminarily denied by the Special Master will likely be approved upon reconsideration. . By way of comparison, counsel's request for a fee of $37.5 million would be an hourly rate of $769 per hour. This would obviously be excessive. See, e.g., Rosenbaum v. MacAllister, 64 F.3d 1439, 1447 (10th Cir.1995) (stating that the court's conscience was shocked by an award that resulted in a fee equal to $900 per hour). . For purposes of this analysis, the Court will accept this hourly rate. While this figure somewhat exceeds the rate normally charged in Cheyenne, the Tenth Circuit permits an award based on higher-than-local rates where, as in the instant case, the party or parties are represented by out-of-town counsel whose rates are higher than those charged locally. See Gottlieb v. Barry, 43 F.3d 474, 485 n. 8 (1994). . The Supreme Court has rejected the use of multipliers to enhance the lodestar’s hourly rate amount in statutory fee-shifting cases, see City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), but it has not rejected the use of multipliers in common fund cases. While this Court recognizes that much of the Supreme Court's reasoning in Dague is applicable to the use of multipliers in common fund cases as well, the Court points out that it has not set class counsel’s fee with the lodestar method, and has instead merely used the lodestar method as a rough crosscheck of the result reached with the percentage of the fund method and the Johnson factors. . Non-class claimants will not share this burden. The Supplement to the Agreement provides that \"[n]o deductions will be made from any amounts paid to [non-class] Claimants for their pro rata share of attorneys' fees or" }, { "docid": "495657", "title": "", "text": "also to counsel’s work in different stages of the case. Generally speaking, “status as a prevailing party is determined on the outcome of the case as a whole, rather than by piecemeal assessment of how a party fares on each motion along the way.” Jenkins, 127 F.3d at 714. Thus, the court should not simply deny fees for particular matters on which the plaintiff did not prevail. Id. at 717. Any award for time spent on matters on which a plaintiff lost, however, must be reasonable, considering “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.” Id. at 718. In reaching its fee award, the district court appeared to carve out counsel’s work on some aspects of the case as generally undeserving of compensation. The district court awarded only nominal fees for time counsel spent opposing the motions to dismiss and awarded no fees for time spent opposing the motion for certification to the South Dakota Supreme Court. It also denied any compensation for the time plaintiffs’ counsel spent working on the remedial phase of the case, even though counsel’s work on that phase was the direct result of the plaintiffs’ success on the merits. On remand, the district court should award a reasonable fee for the time counsel spent on these matters. The district court did not err in basing the fee award on in-state rates. A reasonable hourly rate is usually the ordinary rate for similar work in the community where the case has been litigated. Avalon Cinema Corp. v. Thompson, 689 F.2d 137, 140 (8th Cir.1982) (en banc). In a case where the plaintiff does not use local counsel, the court is not limited to the local hourly rate, if the plaintiff has shown that, in spite of his diligent, good faith efforts, he was unable to find local counsel able and willing to take the case. Id. at 140 — 41. In this case, the district court declined to award a fee based" }, { "docid": "19996733", "title": "", "text": "No one expects the plaintiffs to conduct statistical surveys on a collateral matter like attorney’s fees, and the antitrust laws do not encourage counsel to spend much time discussing fee levels with competing lawyers. Id. at 493. According to Atlantic Fish Spotters, Van Der Hout’s declaration satisfactorily demonstrates that no other counsel was available to take Nadarajah’s case at the adjusted statutory maximum hourly rate. Moreover, the government has failed to rebut Nadarajah’s showing that qualified counsel was not available. d. Prevailing Market Rates i. Non-Profit Representation The government contends that Nadarajah should not be awarded prevailing market rates, or any fees at all for that matter, because he was represented by the ACLU, a non-profit organization, rather than by private counsel. The government objects that Nadarajah did not submit his retainer agreement with the ACLU, or evidence of the ACLU employees’ hourly salaries, and therefore the court cannot evaluate the appropriateness of the fee request. The government argues that “there are substantial and compelling economic reasons for allowing private firms to obtain EAJA payments at market rates where appropriate,” but that non-profit organizations “do not operate on these same market principles” and therefore should not obtain prevailing market rates. The government’s contentions are not supported by legal authority and lack merit. The United States Supreme Court clarified long ago that the award of attorneys’ fees under civil rights fee-shifting statutes is not cost-based, and that the award of prevailing market rates — regardless whether the claimant is represented by private counsel or a non-profit legal services organization — should not be viewed as an unjustified “windfall” profit to the attorney. See Blum v. Stenson, 465 U.S. 886, 892-95, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Hensley, 461 U.S. at 433 n. 7, 103 S.Ct. 1933 (standards applicable to § 1988 awards “are generally applicable in all cases where Congress has authorized an award of fees to a ‘prevailing party’”); see also INS v. Jean, 496 U.S. 154, 161, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) (applying Hensley to EAJA award). “It is well-settled that an award of attorneys fees" }, { "docid": "5676240", "title": "", "text": "total of $60,580 in fees; (2) Elise Garber, a paralegal/law clerk of the firm, spent 23.30 hours at an hourly rate of $225 for a total of $5,242.50 in fees; and (3) Christian Koerner, a paralegal/law clerk of the firm, spent 64.50 hours at an hourly rate of $175 for a total of $11,287.50. Plaintiff has also submitted documentation supporting a total of $1,339.42 in unreimbursed expenses. The sum of Plaintiffs counsel’s total lodestar ($77,110) and unreimbursed expenses ($1,339.42) exceed the $65,000 sought by way of the instant motion. Because the FCRA is a statutory fee-shifting statute, Plaintiff urges the Court to award the $65,000 sought based on Plaintiffs counsel’s lodestar. Defendants do not contest Plaintiffs motion, the granting of which would result in attorneys’ fees that exceed the $48,820 in gift card recovery for class members. Of course, Defendants’ apathy on this issue is not unusual because their primary interest is in buying peace. See Pet Food Prods., 629 F.3d at 359, 2010 WL 5127661, at *20 (Weis, J., concurring in part and dissenting in part) (describing “the parties’ disincentives to invoke judicial scrutiny of fee awards”). A. The Nature of the CouH’s Revieiv In determining whether to award counsel attorneys’ fees, the court “must conduct a ‘thorough judicial review’ of class counsels’ request for attorneys’ fees.” Perry, 229 F.R.D. at 118. The court, as both Rule 23 and the applicable statute entitling counsel to attorneys’ fees in this case provide, is tasked with ensuring that the attorneys’ fees sought are reasonable. See Fed.R.Civ.P. 23(h) (“In a certified class action, the court may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement”); 15 U.S.C. § 1681n(a)(3) (providing “the costs of the action together with reasonable attorney’s fees as determined by the court” are recoverable). As noted, institutional concerns of fairness are necessarily implicated in this inquiry. See Gen. Motors Corp., 55 F.3d at 820. As explained further infra, courts may fix attorneys’ fees by reference to counsel’s total lodestar. Of course, in cases where it is understood counsel’s compensation will not" }, { "docid": "5439681", "title": "", "text": "what is essentially a tort case in the storied but straightforward tradition of Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (1891). “The statutory provision for attorney’s fees aims to attract competent legal counsel for those with meritorious claims. It is not designed to provide a windfall recovery of fees.” Fontaine, 415 Mass. at 326, 613 N.E.2d at 892 (discussing analogous attorneys’ fees provision in state anti-age discrimination statute) (citation omitted). In a case such as this, where the plaintiffs obtain modest damages for a simple tort that bears little significance for anyone beyond the parties at bar, the statutory purpose of the Massachusetts Civil Rights Act is adequately satisfied by awarding attorneys’ fees based on the lodestar method, without enhancement. VI. ORDER In accordance with the foregoing discussion, this Court hereby ORDERS Harrelson to pay Connolly and Adao the following assessment of reasonable attorneys’ fees pursuant to Mass. Gen. L. ch. 12, § 11I: attorneys’ fees of $79,949.41, representing the total requested by Connolly and Adao less $17,785.00 attributable to the disallowed fee enhancement. SO ORDERED. . While Connolly and Adao have chosen to refer to the requested multiplier as a \"lodestar,” to avoid confusion this Court will refer solely to a \"fee enhancement.” The term \"lodestar\" has in fact long been used to mean the product of an attorney’s hours reasonably spent on litigation multiplied by a reasonable hourly rate for lawyers of comparable skill, reputation, and experi ence in the relevant community. See McLaughlin v. Boston Sch. Committee, 976 F.Supp. 53, 60 n. 10 (D.Mass.1997) (Garrity, J-) (providing an historical account of the term’s development). The \"lodestar\" figure is itself subject to adjustment, upward or downward, in light of other relevant factors such as the level of success obtained. See Morgan v. Gittens, 915 F.Supp. 457, 469 (D.Mass. 1996) (Garrity, J.). . . Harrelson has not challenged these figures. . Indeed, it has even been said \"that adjustments are not to be given in reward for stellar performance.” Hall v. Ochs, 817 F.2d 920, 929 (1st Cir.1987) (emphasis added). . The federal treatment of contingency representation" }, { "docid": "23278914", "title": "", "text": "of any fee award must be considered against the backdrop of the “American Rule,” which provides that courts generally are without discretion to award attorneys’ fees to a prevailing plaintiff unless (1) fee-shifting is expressly authorized by the governing statute; (2) the opponents acted in bad faith or willfully violated a court order; or (3) “the successful litigants have created a common fund for recovery or extended a substantial benefit to a class.” Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240, 275, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) (Brennan, J., dissenting); accord Zambrano v. City of Tustin, 885 F.2d 1473, 1481 & n. 25 (9th Cir.1989). The award of attorneys’ fees in a class action settlement is often justified by the common fund or statutory fee-shifting exceptions to the American Rule, and sometimes by both. See Staton, 327 F.3d at 972; see also Court Awarded Attorney Fees, Third Circuit Task Force, 108 F.R.D. 237, 250 (1985) (purpose of common-fund exception is to “avoid the unjust enrichment of those who benefit from the fund that is created, protected, or increased by the litigation and who otherwise would bear none of the litigation costs”). We have approved two different methods for calculating a reasonable attorneys’ fee depending on the circumstances. The “lodestar method” is appropriate in class actions brought under fee-shifting statutes (such as federal civil rights, securities, antitrust, copyright, and patent acts), where the relief sought — and obtained — is often primarily injunctive in nature and thus not easily monetized, but where the legislature has authorized the award of fees to ensure compensation for counsel undertaking socially beneficial litigation. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir.1998); In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liability Litig., 55 F.3d 768, 821 (3d Cir.1995). The lodestar figure is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation (as supported by adequate documentation) by a reasonable hourly rate for the region and for the experience of the lawyer. Staton, 327 F.3d at 965. Though the lodestar figure is" }, { "docid": "5439668", "title": "", "text": "[Massachusetts Civil Rights Act]” inasmuch as “similar plaintiffs and their lawyers [would] tack on [a Massachusetts Civil Rights Act claim] to even the most routine claims ... in the hope of recovering a large fee.” Id. at 7. Finally, Harrelson takes the jury’s award of only $1.00 in damages to Adao as an “implicit rejection of Adao’s claims,” id., such that the Court should reduce any fee awarded to reflect Berger’s lack of success with Adao’s claims. III. LODESTAR CALCULATIONS In determining attorneys’ fees awards under the Massachusetts Civil Rights Act, this Court is obligated to make an independent assessment of what constitutes a “reasonable” award: Any aggrieved person ... who prevails] in an action authorized by this section shall be entitled to an award of the costs of the litigation and reasonable attorneys’ fees in an amount to be fixed by the court. Mass. Gen. L. ch. 12, § 111; accord Fontaine v. Ebtec Corp., 415 Mass. 309, 324, 613 N.E.2d 881, 890 (1993) (“The amount of a reasonable attorney’s fee, awarded on the basis of statutory -authority .... is largely discretionary with the judge, who is in the best position to determine how much time was reasonably spent on a case, and the fair value of the attorney’s services.”). The starting point for such an analysis is the now-familiar “lode-star” calculation. See Stowe v. Bologna, 417 Mass. 199, 203, 629 N.E.2d 304, 307 (1994) (“The basic measure of reasonable attorney’s fees is a ‘fair market rate for the time reasonably spent preparing and litigating a case.’ ”) (quoting Fontaine, 415 Mass. at 326, 613 N.E.2d at 891). “Fair market rate” is the “reasonable hourly rate of compensation prevailing in the relevant community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” McLaughlin, 976 F.Supp. at 60. Berger’s affidavit asserts that his usual and customary hourly rate for legal services is $200.00 per hour. See Berger Aff. at 1. This figure lies within the range of rates for attorneys with his experience in Southeastern Massachusetts, which Berger reckons to be between $175.00 and $250.00 per hour." }, { "docid": "14749328", "title": "", "text": "fees within this district, takes into account attorneys’ fee petitions previously encountered within this district. This Court recognizes that Schwartz is a highly skilled civil rights attorney with years of experience and is quite prominent within the Boston legal community. Schwartz’s request for an hourly rate of $330, however, is too steep. Although some large Boston law firms might charge this amount, as indicated by the report from the Massachusetts Lawyers Weekly, such figures simply do not speak to whether those lawyers provide similar services to their clients. This Court therefore holds that a fee of $250 is a reasonable hourly rate for a civil rights attorney of Schwartz’s outstanding quality. See, e.g., Alfonso v. Aufiero, 66 F.Supp.2d 183, 197 (D.Mass.1999) (Saris, J.) (holding that $250 is a typical hourly rate for a senior private civil rights trial attorney in Boston); Zurakowski v. D’Oyley, 46 F.Supp.2d 87, 89 n. 2 (D.Mass.1999) (holding that hourly rate of $240 was reasonable where counsel was “foremost practitioner” in civil rights but noting that this rate “Ought not be taken as some emerging Massachusetts standard”); Connolly v. Harrelson, 33 F.Supp.2d 92, 95-96 (D.Mass.) (approving hourly rate of $200 in civil rights case for attorney with twenty-five years of experience), aff'd, 201 F.3d 426, 1999 WL 699906 (1st Cir.1999); McLaughlin ex rel. McLaughlin v. Boston Sch. Comm., 976 F.Supp. 53, 62 (D.Mass.1997) (Garrity, J.) (holding $200 hourly rate reasonable in civil rights action). Moreover, this is the highest amount that any other court has awarded Schwartz in previous litigation. Schwartz Aff. ¶ 13 (describing court awarded hourly rates ranging from $200 in 1987 to $250 in 1996). Thus, the Court awards Schwartz at a $250 hourly rate. With respect to Scheckner and Massey, this Court has little information from which to determine hourly rates. Within the law firm of Rodgers, Powers & Schwartz, Scheckner bills at $190 per hour and Massey bills at $75 per hour. Id. ¶¶ 14-15. Moreover, the information provided by Schwartz informs the Court that among Boston firms, the associate hourly rate ranges from $75 per hour to $310 per hour." }, { "docid": "12497160", "title": "", "text": "109 S.Ct. 939, 103 L.Ed.2d 67 (1989). “When the plaintiff’s fee arrangement is less than a reasonable fee, the defendant is required to pay the higher amount.” Jardien v. Winston Network, Inc., 888 F.2d 1151, 1160 (7th Cir.1989). Hence, while the original agreement between counsel and client is a factor to be considered, the award to STOP for Mr. Hamilton’s fee will not be limited to the $80.00 per hour rate simply because it was the rate of pay STOP could afford. While Mr. Hamilton is not an environmental specialist, he is an attorney with more than twenty years experience. Indeed, based on the affidavits submitted by both STOP and the EWC, Mr. Hamilton appears to have been the most experienced litigator of the attorneys who worked on this case. That he was able to represent his client forcefully and intelligently on issues beyond his regular areas of expertise favors an award in the market rate’s upper range, particularly in light of the complexity and novelty of legal issues present in this action. Since attorneys Plews and Pendygraft, with fewer years of experience than Mr. Hamilton (and with comparably lesser success in this case) have been paid at an hourly rate of $125.00, a rate somewhat above that is appropriate for counsel for the prevailing party. Mr. Hamilton’s requested hourly rate of $150.00 is reasonable. C. Multiplier STOP argues for application of a multiplier of two or three to the lodestar calculation for two main reasons. First, STOP argues that the uncertainty of its ability to recover its costs warrants a multiplier, apparently (although not expressly stated) to bring those fees that are recovered more in line with the actual expenses incurred. STOP contends that the present nature of the defendants’ financial position and the inevitable delay in payment (because of pending bankruptcy proceedings) justify the multiplier under guidance provided in recent Supreme Court opinions. Second, multipliers have been permitted when the quality of representation has been exceptional, particularly in cases such as this one, involving complex issues of fact and law. STOP concedes that determination of the quality of" }, { "docid": "23511885", "title": "", "text": "to her attorneys various amounts depending on whether the case settled or went to trial. One measure was that Townsend would pay to her attorneys 30% of any pre-trial settlement or $250 per hour, whichever was greater. The parties agree that, had the rate of $250 been used, the Rule 68 Offer would have exceeded the sum of the plaintiffs ultimate recovery plus pre-Offer fees and costs. The district court did not err in declining to use the retainer rate as the basis for calculating the reasonable hourly rate. In Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989), the Supreme Court made clear that, in determining a reasonable hourly rate for an attorney’s services, the amount set forth in a contingent fee retainer agreement is not dispositive. Id. at 93, 109 S.Ct. 939. The Court explained that: [A]s we see it, a contingent-fee contract does not impose an automatic ceiling on an award of attorney’s fees.... As we understand § 1988’s provision for allowing a ‘reasonable attorney’s fee,’ it contemplates reasonable compensation, in light of all of the circumstances, for the time and effort expended by the attorney for the prevailing plaintiff, no more and no less. Should a fee agreement provide less than a reasonable fee calculated in this manner, the defendant should nevertheless be required to pay the higher amount. Id.; see also Reiter, 457 F.3d at 232-33 (holding that the market rate rather than the retainer agreement rate was the best measure of the reasonable hourly rate when the retainer agreement rate was discounted for the plaintiff in a civil rights case). Indeed, this Court has instructed that determination of a reasonable hourly rate “contemplates a case-specific inquiry into the prevailing market rates for counsel of similar experience and skill to the fee applicant’s counsel,” an inquiry that may “include judicial notice of the rates awarded in prior cases and the court’s own familiarity with the rates prevailing in the district.” Farbotko v. Clinton Cnty., 433 F.3d 204, 209 (2d Cir.2005). The district court, relying on Farbotko, conducted just such a case-specific" }, { "docid": "18406301", "title": "", "text": "F.Supp. 321 (N.D.Ill.1975) to $65 in Davis v. County of Los Angeles, 8 E.P.D. ¶ 9444 (C.D.Ca.1974). King v. Greenblatt, 560 F.2d 1024 (1st Cir. 1977), approved of an hourly rate of $50 in a civil rights case brought by a prisoner seeking improvement of his conditions of confinement at a treatment center for the sexually dangerous. The appellants maintained that the district court found the .case not “of truly exceptional public importance.” The First Circuit, however, approved of the $50 hourly rate, which was used as a yardstick, upon recognition of the important issues involved, the beneficial results peculiarly dependent upon the work of counsel and the commendable diligence and ability shown by counsel. In this district, Judge Becker in Entin v. Barg, 412 F.Supp. 508 (E.D.Pa.1976), approved a settlement in a securities fraud case that would have resulted in an extremely lengthy trial with an uncertain outcome. In a careful analysis, Judge Becker determined class counsels’ reasonable hourly rates where the attorneys generally worked on a contingency basis on securities and antitrust matters. The reasonable hourly rates ranged from $40 to $125. The lower rates were assessed for attorneys who had practiced three to four years and the top rate, $125, was assessed for time spent by David Berger, whom Judge Becker recognized as being “widely regarded as one of the nation’s foremost plaintiff’s class action attorneys in both the securities and antitrust fields.” 412 F.Supp. at 517 n. 18. More recently, in Commonwealth of Pennsylvania v. O’Neill, supra, Judge Full-am granted an award of counsel fees under the Fees Act in a case involving “long and complex litigation challenging the hiring and promotional practices of the Police Department of the city of Philadelphia on racial grounds.” 431 F.Supp. at 701. Basic fee awards were made to Robert J. Rein-stein, at that time a full professor of law at Temple University, on a basis of $40 per hour and to various members of the Drinker, Biddle and Reath law firm at two-thirds their hourly rates. Henry W. Sawyer, III, from the period commencing in 1970, received two-thirds of" }, { "docid": "14749329", "title": "", "text": "taken as some emerging Massachusetts standard”); Connolly v. Harrelson, 33 F.Supp.2d 92, 95-96 (D.Mass.) (approving hourly rate of $200 in civil rights case for attorney with twenty-five years of experience), aff'd, 201 F.3d 426, 1999 WL 699906 (1st Cir.1999); McLaughlin ex rel. McLaughlin v. Boston Sch. Comm., 976 F.Supp. 53, 62 (D.Mass.1997) (Garrity, J.) (holding $200 hourly rate reasonable in civil rights action). Moreover, this is the highest amount that any other court has awarded Schwartz in previous litigation. Schwartz Aff. ¶ 13 (describing court awarded hourly rates ranging from $200 in 1987 to $250 in 1996). Thus, the Court awards Schwartz at a $250 hourly rate. With respect to Scheckner and Massey, this Court has little information from which to determine hourly rates. Within the law firm of Rodgers, Powers & Schwartz, Scheckner bills at $190 per hour and Massey bills at $75 per hour. Id. ¶¶ 14-15. Moreover, the information provided by Schwartz informs the Court that among Boston firms, the associate hourly rate ranges from $75 per hour to $310 per hour. Id. Ex. B. The requested rates of $190 and $70 per hour appear too steep for the services of a third-year associate and a law student. Indeed, other courts within this district have awarded lower fees to similarly qualified individuals. E.g., Alfonso, 66 F.Supp.2d at 197 (awarding hourly rate of $130 to associate); Guckenberger, 8 F.Supp.2d at 107-08 (approving hourly rate of $140 for junior attorney and hourly rate of $60 for law clerks and paralegals); Murray v. Shaw Indus., Inc., 990 F.Supp. 46, 48 (D.Mass.1997) (approving hourly rate of $125 to $140 for associate counsel). Accordingly, this Court reduces Scheck-ner’s rate to $120 and Massey’s rate to $60 per hour. The Court also reduces the attorneys’ hourly rates based on the type of work performed. “It has become established practice in this Circuit to distinguish between ‘core’ and ‘non-core’ work when determining attorneys’ fees awards.” Connolly, 33 F.Supp.2d at 96 (citing Brewster v. Dukakis, 3 F.3d 488, 492 n. 4 [1st Cir.1993]). “[Cjore work includes legal research, writing of legal documents, court appearances, negotiations" } ]

[ { "docid": "8749114", "title": "", "text": "This petition was denied and the motion in the District Court was not pressed. The Government demurred to each of the three spécial pleas and the District Court, sustaining the demurrers, proceeded to trial. The jury rendered a verdict of guilty, motions for a new trial and.in arrest were overruled, and the plaintiff in error was sentenced to imprisonment for two years and to pay a, fine of $5,000. The case is now brought directly to this court. The motion to dismiss must be granted. Aspen Mining Co. v. Billings, 150 U. S. 31; Brown v. Alton Water Co., 222 U. S. 325; Metropolitan Water Co. v. Kaw Valley District, 223 U. S. 519; Union Trust Co. v. Westhus, 228 U. S. 519. The duty of the District Court was defined by the decision of the Circuit Court of Appeals and in its further proceedings it was bound to apply the principles which that court had laid down for its guidance. It may not have been observed by the appellate court that, in the case of Shapiro, the ’Government had entered a nolle prosequi as to the counts charging an offense which might be punished by fine alone; but this being the actual state of the record, it cannot be doubted that, reading the mandate of the appellate court in the light of its opinion, the District Court was not free to accept the plea of nolo contendere as applicable to the remaining 'prison counts.’ Its obedience to the mandate under the law as declared by the Circuit Court of Appeals required it with respect to these counts upon which the Government stood to reject the plea of nolo contendere and to proceed with the case. It is now assigned as error that the District Court did set aside this plea. It is insisted that the plea had been accepted when originally tendered, but this is negatived by the ruling of the Circuit Court of Appeals and we are in substance asked to revise its decision upon a writ of error to the District Court. This would be to transcend" } ]

[ { "docid": "7477655", "title": "", "text": "Per Curiam: Appeal dismissed for the want of a substantial federal question. Merrick v. N. W. Halsey & Co., 242 U. S. 658; Hall v. Geiger-Jones Company, 242 U. S. 539. Mr. George E. Brand for appellant. Messrs. William L. Carpenter and Thomas G. Long for appellee." }, { "docid": "22323475", "title": "", "text": "690, 699. Economy Light Co. v. United States, 256 U. S. 113. See 107 F. 2d at 780. Shively v. Bowlby, 152 U. S. 1, 18 and 26; United States v. Utah, 283 U. S. 64, 75. Oklahoma v. Texas, 258 U. S. 574, 591, 594; United States v. Oregon, 295 U. S. 1, 14. Cf. United States v. Rio Grande Irrigation Co., 174 U. S. 690, 699. Art. III, § 2, cl. 1. Cf. Genesee Chief v. Fitzhugh, 12 How. 443. The Robert W. Parsons, 191 U. S. 17, 28; Ex parte Boyer, 109 U. S. 629; Marine Transit Co. v. Dreyfus, 284 U. S. 263, 271-72. The Montello, 20 Wall. 430, 442-43; Economy Light Co. v. United States, 256 U. S. 113, 122; United States v. Utah, 283 U. S. 64, 86. See also Mr. Justice McLean in Spooner v. McConnell, 22 Fed. Cas. No. 13,245, at p. 944 (C. C. D. Ohio 1838). Illustrative of this natural growth is United States v. Cress, 243 U. S. 316, involving riparian proprietors’ rights where improvements raise the river level so that uplands are newly and permanently subjected to the servitude of public use for navigation. Compensation was decreed for the taking with a declaration that the waterways in question, as artificially improved, remained navigable waters of the United States (pp. 325 and 326). Cf. Arizona v. California, 283 U. S. 423, 454. Cf. Barnes v. United States, 46 Ct. Cl. 7, 28. United States v. Utah, 283 U. S. 64; Arizona v. California, 283 U. S. 423, 452-54. United States v. Utah, 283 U. S. 64, 82. Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 329. Economy Light Co. v. United States, 256 U. S. 113, 124; Arizona v. California, 283 U. S. 423, 453. Cf. The Montello, 20 Wall. 430, 441. See 23 F. Supp. at 91. This is shown by the testimony of WNs, Peters, Starbuck, Lane, E. M. Smith, Farley, Kenley, Lucas, E. W. Lilly, W. L. Burks, Z. V. Burks, Johnson, Wauhop, Stover, R. Calloway, J. C. Martin, Tom-kies, and B. C. Lilly.. E." }, { "docid": "21383316", "title": "", "text": "are asked to do is to review and reverse the decree of the latter. The power here to review that decree has been exhausted; but, in any event, it could not be exercised upon direct appeal or error. Brown v. Alton Water Co., 222 U. S. 325, 331-334; Carter v. Roberts, 177 U. S. 496, 500; Union Trust Co. v. Westhus, 228 U. S. 519, 522-524; Metropolitan Co. v. Kaw Valley District, 223 U. S 519, 522-524; Shapiro v. United States, 235 U. S. 412, 415-417. It follows that the only questions open for consideration are those arising from the contempt order. But that order, being in part punitive, takes character from its criminal feature and, ordinarily, such an order is not open to review by this court upon direct appeal or error. O’Neal v. United States, 190 U. S. 36, 38; Hayes v. Fischer, 102 U. S. 121, 122; In re Chetwood, 165 U. S. 443, 462. And see Union Tool Co. v. Wilson, 259 U. S. 107, 110-111; Bessette v. W. B. Conkey Co., 194 U. S. 324, 336-338; Matter of Christensen Engineering Co., 194 U. S. 458, 461; In re Merchants’ Stock Co., 223 U. S. 639, 641-642. It may be said in passing that the case is here upon appeal not upon writ of error, the appropriate mode of review in criminal contempts; but that is unimportant under c. 448, § 4, 39 Stat. 726, 727, requiring disregard of such mistakes. Appellant insists, however, that the jurisdiction of this court attaches upon the grounds that the district court was without jurisdiction to make the order and that there was a denial of constitutional rights. See Grant v. United States, 227 U. S. 74, 78-79. Jurisdiction of the district court here over the person and over the subject-matter of contempts is beyond question; and the challenge to the jurisdiction, as well as the assumed denial of constitutional rights, apparently, are made to rest only upon the assertion that it was not within the power of the referee or the district court, as a court of bankruptcy, to" }, { "docid": "22618175", "title": "", "text": "cases were decided by Mr. Justice Nelson, on circuit. “While the Circuit Court may not be technically a court of the Commonwealth, it is a court within it; and that, as we think, is all the legislature intended to provide for.” 96 U. S. 369, 377. See Madisonville Traction Co. v. Mining Co., 196 U. S. 239, 255-56. Cf. Louisville & N. R. Co. v. Chatters, 279 U. S. 320, 329. A cognate misconception as to the purpose of the Act of 1887-88 in contracting the jurisdiction of the circuit courts underlay the decision in Ex parte Wisner, 203 U. S. 449, overruled in Lee v. Chesapeake & Ohio Ry. Co., 260 U. S. 653, 659. The Culberson Bill, which passed the House in 1887, was H: R. 2441, 49th Cong., 1st Sess. It provided in its original form that the lower federal courts should\" not take “cognizance of any suit” between-“a corporation created or organized by or under the laws of any State and a citizen of any State in which such corporation at the time the cause of action accrued may have been carrying on any business authorized by the law creating it. . . .” There were likewise provisions forbidding removal of such suits to the lower federal courts. See 18 Cong. Rec. 613; H. Rep. No. 1078, 49th Cong., 1st Sess. Cong. Rec. 1304-1305; 14 Cong. Rec. 1270; 15 Cong. Rec. 4909. Riddle v. New York, L. E. & W. R. Co., 39 F. 290 (C. C., W. D. Pa., 1889); Consolidated Store-Service Co. v. Lamson Consol. Store-Service Co., 41 F. 833 (C. C. Mass., 1890) approvingly cited in Haight & Freese Co. v. Weiss, 156 F. 328 (C. C. A. 1st, 1907). Texas Land & Mortgage Co. v. Worsham, 76 Tex. 556. 146 U. S. at 207. 146 U. S. at 207. 146 U. S. at 207. The Denton case was based on Shaw v. Quincy Mining Co., 145 U. S. 444, in which there was no consent derivable from the designation of an agent for service. Both opinions were written by Mr. Justice Gray," }, { "docid": "21383315", "title": "", "text": "appellant' has not only taken this appeal but also a petition to revise to the circuit court of appeals for the fifth circuit. Appellee has submitted a motion to dismiss the appeal or affirm the decree of the district court upon the grounds, among others, that this court is without authority to entertain the appeal, and that there is no substance in the questions sought to be presented. The motion to dismiss must be granted. Upon the appeal here appellant seeks a review of the order adjudging appellant in contempt and also of the jurisdictional issues disposed of by the original decree approving the action of the referee which the circuit court of appeals refused to disturb. All questions concerning the validity and merits of that decree were finally disposed of by the decree of the circuit court of appeals and the denial of the application for a certiorari by this court. The district court was bound to give effect to the decision of the circuit court of appeals; so that what, in effect, we are asked to do is to review and reverse the decree of the latter. The power here to review that decree has been exhausted; but, in any event, it could not be exercised upon direct appeal or error. Brown v. Alton Water Co., 222 U. S. 325, 331-334; Carter v. Roberts, 177 U. S. 496, 500; Union Trust Co. v. Westhus, 228 U. S. 519, 522-524; Metropolitan Co. v. Kaw Valley District, 223 U. S 519, 522-524; Shapiro v. United States, 235 U. S. 412, 415-417. It follows that the only questions open for consideration are those arising from the contempt order. But that order, being in part punitive, takes character from its criminal feature and, ordinarily, such an order is not open to review by this court upon direct appeal or error. O’Neal v. United States, 190 U. S. 36, 38; Hayes v. Fischer, 102 U. S. 121, 122; In re Chetwood, 165 U. S. 443, 462. And see Union Tool Co. v. Wilson, 259 U. S. 107, 110-111; Bessette v. W. B. Conkey" }, { "docid": "22449238", "title": "", "text": "not defeat the central purpose of the Railway Labor Act. Our decision in Moore v. Illinois Central R. Co., 312 U. S. 630, does not stand in the way of this. The decision in that case has been given its proper, limited scope in Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239. Moore carved out from the controlling doctrine of primary jurisdiction the unusual and special situation of wrongful discharge where the aggrieved employee had been expelled from the employment relationship. Moreover, since the discharge had been accepted as final by the employee, it is probable that the damages accrued primarily after the employment relationship had terminated. Our consistent regard for the importance of having disputes between railroad employees and carriers settled by the administrative Board which Congress established for that purpose requires respondent to resort to the NRAB for adjudication of his claim. The judgment is reversed, and the cause remanded, in order that the case niay be returned to the District Court, with instructions to dismiss the complaint for lack of jurisdiction. Reversed and remanded. See, e. g., Railroad Trainmen v. Chicago River & Ind. R. Co., 353 U. S. 30; Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239; Order of Railway Conductors v. Pitney, 326 U. S. 561; Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711. E. g., National Railroad Adjustment Board, First Division, Award No. 15406,; id., Awards Nos. 11888 (with interpretation of this award contained in Volume 81 of awards), 12418, 16129. In the year 1956-1957 there were 361,000 retired railroad employees receiving benefits under the Railroad Retirement Act. H. R. Doc. No. 278, 85th Cong., 2d Sess. The inapplicability of United States v. Interstate Commerce Comm’n, 337 U. S. 426, to the problem of this case, like its inapplicability to the problem in Union Pacific R. Co. v. Price, post, p. 601, decided today, is dealt with in the Court’s opinion in that case. Mr. Justice Black, with whom The Chief Justice and Mr. Justice Douglas concur, dissenting. I would affirm the" }, { "docid": "22356841", "title": "", "text": "S. 393; N. Y. ex rel. Rogers v. Graves, 299 U. S. 401; Brush v. Commissioner, 300 U. S. 352. E. g., Mr. Justice Brandéis, dissenting, in Jaybird Mining Co. v. Weir, 271 U. S. 609, 615; Mr. Justice Holmfes, dissenting, in Panhandle Oil Co. v. Mississippi, 277 U. S. 218, 222; Mr. Justice Stone, dissenting, in Indian Motocycle Co. v. United States, 283 U. S. 570, 580; Mr. Justice Roberts, dissenting, in Brush v. Commissioner, 300 U. S. 352, 374. See, also, Mr. Justice Black, concurring, in Helvering v. Gerhardt, 304 U. S. 405, 424. Bank of Toronto v. Lambe, 12 App. Cas. 575; D’Emden v. Pedder, 1 C. L. R. 91. Especially is this true of the Australian Constitution. One of its framers, who afterwards became one of the most distinguished of Australian judges, Mr. Justice Higgins, characterized it as having followed our Constitution with “pe.dantic imitation.” Australasian Temperance & G. M. Life Assurance Society v. Howe, 31 C. L. R. 290, 330. Abbott v. City of St. John, 40 Can. Sup. Ct. 597; Caron v. The King, (1924) A. C. 999; Amalgamated Society of Engineers v. Adelaide Steamship Co., 28 C. L. R. 129; West v. Commissioner of Taxation, 56 C. L. R. 657. E. g., James v. Dravo Contracting Co., 302 U. S. 134; Helvering v. Mountain Producers Corp., 303 U. S. 376; Helvering v. Gerhardt, 304 U. S. 405. Compare Taney, C. J., in Passenger Cases, 7 How. 283, 470: “I . : . am quite willing that it be regarded as the law of this eourt,-that its opinion upon the construction of the Constitution is always open to. discussion when it is supposed to have been founded in error, and.that its judicial authority should hereafter depend altogether on’the force of the reasoning by which it is supported.” Mr. Justice Butler, dissenting: Mr. Justice McReynolds and I- are of opinion that the Home Owners’ Loan Corporation, being an instrumentality of the United States heretofore deemed immune from state taxation, “it necessarily results,” as held in New York ex rel. Rogers v. Graves (1937) 299 U." }, { "docid": "22804122", "title": "", "text": "that it discriminates against, and imposes a burden upon, interstate commerce. The judgment of the Supreme Court of Tennessee is reversed and the cause is remanded to it for further proceedings not inconsistent with this opinion. Reversed. Mr. Justice Stone and Mr. Justice Cardozo are of the opinion that there is nothing in the evidence or special facts relied on by the appellant to sustain a finding of arbitrary action by the State of Tennessee or its official representatives; that on the contrary the separation of grades is conceded to be necessary to give protection to travelers against perils created by the railroad; that a decision correct in result may not properly be reversed because the reasoning of the opinion is inadequate or erroneous; and that upon the facts stated in the record as well as upon any others within the range of judicial notice the appellant has failed to sustain the burden of establishing a violation of its constitutional immunities, and the decree should be affirmed. Mr. Justice McReynolds took no part in the consideration or decision of this case. Public Acts of Tennessee, 1923, c. 29. Public Acts of Tennessee, 1921, c. 132, entitled “An Act to provide for the elimination of grade crossings on State Highways amended 1923, c. 35; 1925, c. 88. See Dyer County v. Railroad, 87 Tenn. 712; 11 S. W. 943; Harriman v. Southern Ry. Co., 111 Tenn. 538; 82 S. W. 213; Chattanooga v. Southern Railway, 128 Tenn. 399; 161 S. W. 1000; Nashville, C. & St. L. Ry. v. Drainage District, 149 Tenn. 490; 261 S. W. 975. Exertion of the power was sustained by this Court in the following cases: New York & New England R. R. v. Bristol, 151 U. S. 556; Cincinnati, I. & W. Ry. v. Connersville, 218 U. S. 336; Chicago, M. & St. P. Ry. v. Minneapolis, 232 U. S. 430; Missouri Pacific Ry. v. Omaha, 235 U. S. 121; Erie R. R. v. Public Utility Commissioners, 254 U. S. 394; Lehigh Valley R. R. v. Commissioners, 278 U. S. 24. Compare Chicago, B. &" }, { "docid": "23390026", "title": "", "text": "its interpretations have failed to withstand the test of time. Compare Ribnik v. McBride, 277 U. S. 350, with Olsen v. Nebraska, 313 U. S. 236; Adair v. United States, 208 U. S. 161, and Coppage v. Kansas, 236 U. S. 1, with Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 187; Lochner v. New York, 198 U. S. 45, and Adkins v. Children’s Hospital, 261 U. S. 525, with West Coast Hotel Co. v. Parrish, 300 U. S. 379. Cf. Power Comm’n v. Hope Gas Co., 320 U. S. 591, dissenting opinion of MR. Justice Jackson at 628. See Clark v. Nash, 198 U. S. 361; Fallbrook Irrigation District v. Bradley, 164 U. S. 112; Kansas v. Colorado, 206 U. S. 46, 93-94; United States v. Rio Grande Dam & Irrigation Co., 174 U. S. 690, 702-703; Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527; Parley’s Park Silver Mining Co. v. Kerr, 130 U. S. 256; Butte City Water Co. v. Baker, 196 U. S. 119; Kendall v. San Juan Silver Mining Co., 144 U. S. 658; Clason v. Matko, 223 U. S. 646. Head v. Amoskeag Mfg. Co., 113 U. S. 9; Wurts v. Hoagland, 114 U. S. 606; Bacon v. Walker, 204 U. S. 311; cf. Ferry v. Spokane, P. & S. R. Co., 258 U. S. 314; Campbell v. California, 200 U. S. 87. Ohio Oil Co. v. Indiana, 177 U. S. 190; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61; Walls v. Midland Carbon Co., 254 U. S. 300; Bandini Petroleum Co. v. Superior Court, 284 U. S. 8; Champlin Refining Co. v. Corporation Commission, 286 U. S. 210; Hunter Co. v. McHugh, 320 U. S. 222. See Hardwicke, The Rule of Capture, 13 Tex. L. Rev. 391, 414r-422; Marshall and Meyers, Legal Planning of Petroleum Production, 41 Yale L. J. 33, 48-52; Ely, The Conservation of Oil, 51 Harv. L. Rev. 1209, 1222-1225; Ford, Controlling the-Production of Oil, 30 Mich. L. Rev. 1170,1181,1192. Independently of any statute, several states have granted equitable relief against waste in order" }, { "docid": "13288606", "title": "", "text": "Per Curiam: These appeals have been fully argued and considered, but in the present situation we find that they present moot issues and that further proceedings upon the merits can neither be had here nor in the court of first instance. To dismiss the appeals would leave the injunction in force, at least apparently so, notwithstanding that the basis therefor has disappeared. Our action must, therefore, dispose of the cause, not merely of the appellate proceedings which brought it here. The practice now established by this Court under similar conditions and circumstances is to reverse the deciee below and remand the cause with directions to dismiss the bill. The order will be, therefore, that the decree is reversed with directions to the District Court to dismiss the bill of complaint without costs, because the controversy involved has become moot and, therefore, is no longer a subject appropriate for judicial action. United States v. Hamburg American Co., 239 U. S. 466, 475; Berry v. Davis, 242 U. S. 468, 470; Board of Public Utility Comm’rs v. Compania General de Tabacos de Filipinas, 249 U. S. 425; Commercial Cable Co. v. Burleson, 250 U. S. 360; Heitmuller v. Stokes, 256 U. S. 359; Brownlow v. Schwartz, 261 U. S. 216; Alejandrino v. Quezon, 271 U. S. 528, 535; Norwegian Co. v. Tariff Comm’n, 274 U. S. 106, 112. Mr. Justice Sanford took no part in the consideration or decision of this cause. Mr. Luther M. Walter, Special Assistant to the Attorney General, with whom Mr. Daniel W. Knowlton was on the brief, for appellants United States and Interstate Commerce Commission. Messrs. Ernest S. Ballard and August G. Guthéim, with whom Mr. Frank E. Harkness was on the brief, for 'appellants Barton Coal Company and Pittsburgh Operators’ Lake Rate Committee .et al. Mr. Henry Wolf Biklé, with whom Messrs. Clyde Brown, William N. King, Andrew P. Martin, Frederic D. McKenney, Atlee Pomerene, James Stilwell, and Charleé R. Webber were on the brief, for appellants Baltimore & Ohio Railroad Company et al. Messrs. John W. Davis and J. V. Norman, with whom Messrs. E." }, { "docid": "13288607", "title": "", "text": "Compania General de Tabacos de Filipinas, 249 U. S. 425; Commercial Cable Co. v. Burleson, 250 U. S. 360; Heitmuller v. Stokes, 256 U. S. 359; Brownlow v. Schwartz, 261 U. S. 216; Alejandrino v. Quezon, 271 U. S. 528, 535; Norwegian Co. v. Tariff Comm’n, 274 U. S. 106, 112. Mr. Justice Sanford took no part in the consideration or decision of this cause. Mr. Luther M. Walter, Special Assistant to the Attorney General, with whom Mr. Daniel W. Knowlton was on the brief, for appellants United States and Interstate Commerce Commission. Messrs. Ernest S. Ballard and August G. Guthéim, with whom Mr. Frank E. Harkness was on the brief, for 'appellants Barton Coal Company and Pittsburgh Operators’ Lake Rate Committee .et al. Mr. Henry Wolf Biklé, with whom Messrs. Clyde Brown, William N. King, Andrew P. Martin, Frederic D. McKenney, Atlee Pomerene, James Stilwell, and Charleé R. Webber were on the brief, for appellants Baltimore & Ohio Railroad Company et al. Messrs. John W. Davis and J. V. Norman, with whom Messrs. E. L. Greever, G. F. Graham, and Robert E. Quirk were on the brief, for appellees Anchor Coal Company et al. Mr. C. R. Hillyer for appellees Whiting-Plover Paper Company et al." }, { "docid": "12379382", "title": "", "text": "v. McDade, supra, 191 U. S. 68, 24 Sup. Ct. 24, 48 L. Ed. 96; Schlemmer v. Buffalo R. P. Co., supra, 220 U. S. 596, 31 Sup. Ct. 561, 55 L. Ed. 596; Seaboard A. L. R. R. Co. v. Horton, supra, 223 U. S. 503, 504, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Yazoo & M. V. R. R. Co. v. Wright, 235 U. S. 379, 35 Sup. Ct. 130, 59 L. Ed. 277. In the Schlemmer Case, Mr. Justice Day said that the distinction between the two defenses was “practical and clear,” and, in the Horton Case, Mr. Justice Pitney said that it was “simple.” This court, speaking through Judge Hollister, in the Ponn Case, 191 Fed. 687, 112 C. C. A. 228, said that they were “entirely distinct.” The distinction was again noted by it in Sterling Paper Co. v. Hamel, 207 Fed. 300, 304, 125 C. C. A. 44, and Yazoo R. Co. v. Wright, 207 Fed. 281, 285, 125 C. C. A. 25. In the case of McMyler Mfg. Co. v. Mehnke, 209 Fed. 5, 126 C. C. A. 147, through Judge Denison, it said: “When each, alike, constituted a completo detense, the distinction was largely academic, and it was natural that the terms should be used with some confusion; but, now that statutes have made differences in the defensive value of the two things, the distinction has become vital and has been the subject of much judicial inquiry.” He dealt therein with what he termed the “seeming conflict” between the statement of Mr. Justice Piolines in the first Schlemmer Case, 205 U. S. 1, 27 Sup. Ct. 407, 51 L. Ed. 681, that assumption of risk “obviously shades into negligence as commonly understood,” and that “the difference between the Iwo is one of degree rather than of kind,” and that of Mr. Justice Day in the second one that “there is, nevertheless, a practical and clear distinction between the two.” Knowledge of the risk is the watchword of the defense of assumption of" }, { "docid": "239559", "title": "", "text": "such question was raised below, albeit after the cause was pending in the trial court for the purpose of giving effect to the mandate of the Circuit Court of Appeals, the right to direct review exists and cannot be denied without refusing to accord the relief plainly afforded by the statute. At best this proposition but involves the assertion that by virtué of the power conferred to take a direct appeal from one court, authority is given to indirectly review the decision of another and higher court, although the statute restricts the right to review such decision to a direct proceeding. But resort to original reasoning, to establish the unsoundness of the proposition relied on is scarcely necessary, as that result will be made plainly manifest by applying principles established in the following cases: Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31, 37; Brown v. Alton Water Co., 222 U. S. 325, and Metropolitan Co. v. Kaw Valley District, 223 U. S. 519. Nor, as in effect held in the Metropolitan Case, can the case of Globe Newspaper Co. v. Walker, 210 U. S. 356, be considered as announcing a doctrine in conflict with the rulings in the Aspen and Alton cases. And aside from a distinction suggested in the Metropolitan Case between the Aspen and Alton cases and the Globe Case, it must follow that if the ruling in the Globe Case was in anywise in conflict with the doctrine announced and approved in the Metropolitan Case, to the extent of such conflict it was necessarily qualified by that decision. It is insisted, however, that in both the Aspen and the Alton cases, the questions which it was sought to review by direct appeal after the decision of the Circuit Court of Appeals had been, either expressly or by necessary implication, passed upon by that court and therefore were expressly foreclosed, while here such is not the case, since the constitutional question was not in the case when it went to the Circuit Court of Appeals, but only made its appearance by an amendment to the" }, { "docid": "7710310", "title": "", "text": "are plaintiffs or petitioners,” those “in which there shall be a controversy between citizens of different states,” those in which there shall be “a controversy between citizens of the same state claiming land under grants of different states,” and those in which there shall ;be “a controversy between citizens of a state and foreign states, citizens or subjects.” This sentence, then, has in view the Circuit Courts of the United States — indeed, its view is!limited thereto' — and it prescribes the character of civil suits of which they shall have jurisdiction. It confers such jurisdiction and none other upon them. Under and by virtue thereof, therefore, each Circuit Court of the United States has original jurisdiction of any suit of either character mentioned therein. The second clause of the second sentence is negative. It is made up of two subordinate clauses. According to Mr. Justice Field in Wilson v. Western Union Telegraph Co. (C. C.) 34 Fed. 561, the first of these two clauses is “a general provision” and the second “a proviso.” This nomenclature was followed by Mr. Chief Justice Fuller in McCormick v. Walthers, 134 U. S. 41, 10 Sup. Ct. 485, 33 L. Ed. 833, and by Mr. Justice Gray in Re Keasbey & Mattison Co., 160 U. S. 221, 16 Sup. Ct. 273, 40 L. Ed. 402. In the case of G., H. & S. A. Ry. Co. v. Gonzales, 151 U. S. 496, 14 Sup. Ct. 401, 38 L. Ed. 248, Mr. Justice Brown characterized the one as a provision of “universal application” and the other as “an exception.” The first of these two clauses is in these words: ■ “And no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant.” As Mr. Justice Gray puts it in Shaw v. Quincy Mining Co., supra, this clause “forbids” any suit being brought elsewhere. The second one covering the “proviso” or “exception” is in these words: “But where the jurisdiction is founded only on the" }, { "docid": "22877081", "title": "", "text": "S. 183; Guaranty Trust Co. v. York, 326 U. S. 99; Garrett v. Moore-McCormack Co., 317 U. S. 239; St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156, 157; and see same case 148 S. W. 1099; Toledo, St. L. & W. R. Co. v. Slavin, 236 U. S. 454, 457-458; and see same case 88 Ohio St. 536, 106 N. E. 1077. Compare Brinkmeier v. Missouri P. R. Co., 224 U. S. 268, with Seaboard Air Line R. Co. v. Renn, 241 U. S. 290. That court among other things said: “In the absence of allegations to the contrary, the inference arises that the plaintiff’s vision was unobscured and that he could have seen and avoided the clinker. . . . In so far as the allegations of the petition show, the sole cause of the accident was the act of the plaintiff in stepping on this large clinker, which he was able to see and could have avoided. It was he who, without any outside intervention, failed to look, stepped on the clinker, and fell.” 77 Ga. App. 783, 49 S. E. 2d 835. Mr. Justice Frankfurter, whom Mr. Justice Jackson joins, dissenting. Insignificant as this case appears on the surface, its disposition depends on the adjustment made between two judicial systems charged with the enforcement of a law binding on both. This, it bears recalling, is an important factor in the working of our federalism without needless friction. Have the Georgia courts disrespected the law of the land in the judgment under review? Since Congress empowers State courts to entertain suits under the Federal Employers’ Liability Act, a State cannot wilfully shut its courts to such cases. Second Employers’ Liability Cases, 223 U. S. 1. But the courts so empowered are creatures of the States, with such structures and functions as the States are free to devise and define. Congress has not imposed jurisdiction on State courts for claims under the Act “as against an otherwise valid excuse.” Douglas v. New York, New Haven & H. R. Co., 279 U. S. 377," }, { "docid": "22970242", "title": "", "text": "the Commission reached its conclusions as to fair value from-data which furnished no legal support, should have enjoined enforcement of the rate order. The court’s action was therefore right, regardless of the method it pursued in reaching the decision that the order was confiscatory. The grounds upon which we decide the case render it unnecessary for us to consider the appellants’ challenge of rulings of the District Court respecting working capital and annual depreciation allowance, or to discuss the rate of return to which the company is entitled in view of the agreement of the court and the Commission upon this point. The decree is Affirmed. Chesapeake & Potomac Telephone Co. v. West, 7 F. Supp. 214. The Commission also allowed a return of 6 per cent, upon the value of the property as determined by it. Chesapeake & Potomac Telephone Co. v. Whitman, 3 F. (2d) 938, 943, 953. 7 F. Supp. 219, 222, 228. The table is as follows: Railroad Commission Cases, 116 U. S. 307, 331; Dow v. Beidelman, 125 U. S. 680, 691; Georgia Railroad & Banking Co. v. Smith, 128 U. S. 174, 179; Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. S. 418, 458; Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 399; Ames v. Union Pac. Ry. Co., 64 Fed. 165, 176; Smyth v. Ames, 169 U. S. 466, 526, 541-2, 544, 546; San Diego Land & Town Co. v. National City, 174 U. S. 739, 757; San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 442; Stanislaus County v. San Joaquin C. & I. Co., 192 U. S. 201, 215; Knoxville v. Knoxville Water Co., 212 U. S. 1, 13, 18; Willcox v. Consolidated Gas Co., 212 U. S. 19, 41; Lincoln Gas Co. v. Lincoln, 223 U. S. 349, 358; Minnesota Rate Cases, 230 U. S. 352, 434, 454; Denver v. Denver Union Water Co., 246 U. S. 178, 190; Houston v. Southwestern Bell Telephone Co., 259 U. S. 318, 324, 325; Bluefield Waterworks Co. v. Public Service Comm’n, 262 U. S." }, { "docid": "239558", "title": "", "text": "Appeals. Indeed, it is unnecessary to cite the many authorities sustaining this view, since the insistence of the plaintiff in error is that every question is open, and in effect the argument seeks a review and reversal of the rulings previously made by the Circuit Court of Appeals. But by the distribution of power made by the act of 1891 and embodied in the Judicial Code, no jurisdiction is conferred upon this court to review a judgment or decree of the Circuit Court of Appeals otherwise than by proceedings addressed directly to that court in a cause which is susceptible of being reviewed. Under these conditions the absence of.jurisdiction to exercise the authority which we are now asked to exert would seem to be clear unless the principle be recognized that we have a right to do by indirection that which the statute gives us power only to do by direct action. It is, however, said the statute gives the right to come directly to this court where a constitutional question is involved and as such question was raised below, albeit after the cause was pending in the trial court for the purpose of giving effect to the mandate of the Circuit Court of Appeals, the right to direct review exists and cannot be denied without refusing to accord the relief plainly afforded by the statute. At best this proposition but involves the assertion that by virtué of the power conferred to take a direct appeal from one court, authority is given to indirectly review the decision of another and higher court, although the statute restricts the right to review such decision to a direct proceeding. But resort to original reasoning, to establish the unsoundness of the proposition relied on is scarcely necessary, as that result will be made plainly manifest by applying principles established in the following cases: Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31, 37; Brown v. Alton Water Co., 222 U. S. 325, and Metropolitan Co. v. Kaw Valley District, 223 U. S. 519. Nor, as in effect held in the Metropolitan Case," }, { "docid": "22632857", "title": "", "text": "removed to a federal court on the basis of diversity of citizenship. This Court upheld the removal on the ground that, although the State had authority to' establish the'substantive,law relevant to the validity of wills and the procedure by which wills were to be contested, if, under the scheme developed by the State, a controversy arose between citizens of different States, the federal courts would adjudicate that controversy. These principles were further articulated in Chicot County v. Sherwood, 148 U. S. 529. This. Court has. often upheld federal court determinations of state law concerning wills, e. g., Ellis v. Davis, 109 U. S. 485; Hess v. Reynolds, 113 U. S. 73, even when the State itself claimed the decedent’s property by escheat, McClellan v. Carland, 217 U. S. 268. E. g., Wabash R. Co. v. Duncan, 170 F. 2d 38; Franzen v. Chicago, M. & St. P. R. Co., 278 F. 370; In re Bensel, 206 F. 369; Broadmoor Land Co. v. Curr, 142 F. 421; South Dakota Cent. R. Co. v. Chicago, M. & St. P. R. Co., 141 F. 578; Chicago, R. I. & P. R. Co. v. 10 Parcels of Real Estate Located in Madison County, Iowa, 159 F. Supp. 140; Williams Live Stock Co. v. Delaware, L. & W. R. Co., 285 F. 795; Deepwater R. Co. v. Western Pocahontas Coal & Lumber Co., 152 F. 824; Union Terminal R. Co. v. Chicago, B. & Q. R. Co., 119 F. 209; Kirby v. Chicago & N. W. R. Co., 106 F. 551; Sugar Creek, P. B. & P. C. R. Co. v. McKell, 75 F. 34; Kansas City & T. R. Co. v. Interstate Lumber Co., 37 F. 3; Mineral Range R. Co. v. Detroit & Lake Superior Copper Co., 25 F. 515; City of Chicago v. Hutchinson, 15 F. 129. Cf. Kaw Valley Drainage District v. Metropolitan Water Co., 186 F. 315; Fishblatt v. Atlantic City, 174 F. 196; Adams v. City of Woburn, 174 F. 192; Kansas City v. Hennegan, 152 F. 249. See also 7 Moore’s Federal Practice (2d ed.) § 71A.11; 6" }, { "docid": "22632858", "title": "", "text": "St. P. R. Co., 141 F. 578; Chicago, R. I. & P. R. Co. v. 10 Parcels of Real Estate Located in Madison County, Iowa, 159 F. Supp. 140; Williams Live Stock Co. v. Delaware, L. & W. R. Co., 285 F. 795; Deepwater R. Co. v. Western Pocahontas Coal & Lumber Co., 152 F. 824; Union Terminal R. Co. v. Chicago, B. & Q. R. Co., 119 F. 209; Kirby v. Chicago & N. W. R. Co., 106 F. 551; Sugar Creek, P. B. & P. C. R. Co. v. McKell, 75 F. 34; Kansas City & T. R. Co. v. Interstate Lumber Co., 37 F. 3; Mineral Range R. Co. v. Detroit & Lake Superior Copper Co., 25 F. 515; City of Chicago v. Hutchinson, 15 F. 129. Cf. Kaw Valley Drainage District v. Metropolitan Water Co., 186 F. 315; Fishblatt v. Atlantic City, 174 F. 196; Adams v. City of Woburn, 174 F. 192; Kansas City v. Hennegan, 152 F. 249. See also 7 Moore’s Federal Practice (2d ed.) § 71A.11; 6 Nichols on Eminent Domain (3d ed.) § 27.8 [2]. Note to Subdivision fk), Notes to Rule 71A of Advisory Committee on Rules, printed at 28 U. S. C. A. Rule 71A (1958 Pocket Part). See Notes to Rule 71A of Advisory Committee on Rules, note 8, supra; see also 7 Moore’s Federal Practice (2d ed.) § 71A.120; 64 Yale L. J. 600. The language of 28 U. S. C. § 2283 has been retained substantially unchanged from its original form in § 5 of the Act of March 2, 1793, 1 Stat. 334-335. For a discussion of its origin and history, see Toucey v. New York Life Ins. Co., 314 U. S. 118. Mr. Justice Clark, with whom Mr. Justice Black, Mr. Justice Frankfurter, ■ and Mr. Justice Harlan • join, dissenting. The Court says that under the peculiar facts of this case the trial judge has abused his discretion in abstaining from trying the issue involved here, which'is presently pending in a previously filed state case between the same parties. I see nothing in" }, { "docid": "2381389", "title": "", "text": "Per Curiam. Appeal transferred to the Circuit Court of Appeals for the Eighth Circuit under the authority of the Act of September 14, 1922, c. 305, 42 Stat. 837, and of the following cases: Aspen Mining and Smelting Co. v. Billings, 150 U. S. 31, 37; Brown v. Alton Water Co., 222 U. S. 325, 331-334; Carter v. Roberts, 177 U. S. 496, 500; Union Trust Co. v. Westhus, 228 U. S. 519, 522, 524; Metropolitan Water Co. v. Kaw Valley Drainage District, 223 U. S. 519, 522-524; Shapiro v. United States, 235 U. S. 412, 415-417; Farmers and Mechanics National Bank v. Wilkinson, 266 U. S. 503, 506. Messrs. Thomas H. Gibson and Henry E. May, with whom Mr. Myron H. Walker was on the brief, for appellant. Mr. Gerald Hughes, with whom Messrs. Clayton C. Dorsey and H. S. Robertson were on the brief, for appellee." } ]

[ { "docid": "14438800", "title": "", "text": "do not require that the injury to a spouse be physical.” (emphasis in original). Adkins v. General Motors Corp., 556 F.Supp. 452, 458 (D.S.D.Ohio 1983). See also In re Loyd, 86 B.R. 663, 664 (Bankr. W.D.Okl.1988) (holding a debtor’s claim for loss of consortium to be entitled to an exemption under the Oklahoma exemption statute and collecting other bankruptcy decisions recognizing a debtor spouse’s loss of consortium as the basis for allowing an exemption under Federal and various state exemption statutes.) The debtors’ lawsuit in the state court included a claim for the debtor wife’s loss of consortium and the settlement provided for release of her claim and dismissal of her cause of action in the lawsuit. Ohio decisions have consistently interpreted Ohio exemption statutes in favor of granting, rather than denying exemptions. It is uniformly held that since the right to exemption is a valuable right, grounded on humane public policy principles, statutes granting exemptions should be liberally construed, and the right to exemption should not be defeated by a mere technicality. 45 0. Jur.3d Exemptions, § 8 (1983) (footnotes omitted) In the absence of evidence from the trustee (B.R. 4003(c), Buroker v. Raybourn, 61 B.R. 10, 11 (D.S.D. Ohio 1986)), establishing that she was not entitled to receive a share of the settlement proceeds, the debtor wife has suffered a personal bodily injury within the meaning of the Ohio exemption statute and has a personal interest in the settlement, and consequently is permitted a five thousand dollar ($5,000.00) exemption pursuant to § 2329.66(A)(12)(c) of the Revised Code. For the above reasons the court GRANTS each debtor an exemption in the amount of five thousand dollars ($5,000.00) for a total amount of ten thousand dollars ($10,000.00). The balance of the proceeds shall be held by the Trustee for further order of the court. An Order in accordance with this decision is simultaneously entered. SO ORDERED. . Under Ohio law, the syllabus of the Ohio Supreme Court establishes the law of the case. See generally, 23 O. Jur.3rd Courts and Judges § 533 (1987)." } ]

[ { "docid": "23555646", "title": "", "text": "related to solely pecuniary or property rights. This Court has no doubt that when Colorado courts are presented with the issue of injuries to the person which result from breach of warranty, fraud, deceit, or false representations, under § 13-21-101 C.R.S.1973 (1984 Supp.), they will hold that indeed they are “personal injuries”. In Miller v. Carnation Co., 39 Colo.App. 1, 564 P.2d 127 (1977), the court held that an injury is personal when it impairs the well-being or the mental or physical health of the victim. Thus, this Court finds that, like the First and Second Claims, the Debtors’ Third and Fourth Claims are likewise exempt. The Debtors’ Fifth Claim in state court is for loss of consortium by Jon Keyworth. “Consortium consists of all the rights arising out of a marital relationship each spouse has to the person, affection, society, companionship, household services, aid and comfort of the other spouse. A husband or a wife has the same right to recover for loss of consortium” Colorado Jury Instructions 2d—Civil, Instruction 6.7. Merck argues that a claim for loss of consortium is action to recover for injury to a property right versus a personal injury. This country has long ago abandoned the notion that a man’s wife is his chattel. Even if there were no Colorado cases deciding whether a claim for loss of consortium was a claim for personal injury rather than injury to property, this Court would so hold. However, Colorado recognized this to be a personal injury as far back as 1939. See American Insurance Co. v. Naylor, 103 Colo. 461, 87 P.2d 260 (1939). It reaffirmed that proposition in dicta in Miller, supra when it was interpreting § 13-21-201, C.R.S.1973. “For example, a claim for loss of consortium is a personal injury within the meaning of the materially identical precursor to § 13-21-101, C.R.S.1973.” Miller, supra, 39 Colo.App. at 7, 564 P.2d 127. This Court finds the Debtors’ Fifth Claim is likewise exempt. The Debtors’ Sixth Claim is brought under the wrongful death act, § 13-21-201, et seq., C.R.S.1973, for the death of the Debtors’ infant" }, { "docid": "10235806", "title": "", "text": "re Carlson, 40 B.R. 746 (Bankr.D.Minn.1984) (Consortium action is a right of action for injury to the person of the debtor or of a relative); In the Matter of Lynn, 13 B.R. 361 (Bankr.W.D.Wis.1981) (Consortium award is “on account of” the spouse’s injury); see also In re Keyworth, 47 B.R. 966 (D.Colo.1985); and In re Sidebotham, 77 B.R. 504 (Bankr.E.D.Pa.1987). The Oklahoma Supreme Court has recently clarified its position on exemptions. This court is committed to the rule that statutes exempting property from forced sale for the payment of debts are to be given a reasonable construction to effect their intent and purpose and in case of doubt the doubt is to be resolved in favor of the exemption, (citations omitted). In re Siegmann, 59 OBAJ 1357 (Okla.1988). A reasonable construction of the involved exemption statute leads the court to conclude that a spouse is entitled to exempt an award based on lost consortium resulting from injury to the other spouse. The burden of proving that a debtor is not entitled to a claimed exemption is upon the party raising the objection. In re Blizard, 81 B.R. 431 (Bankr.W.D.Ky.1988); Bankr. Rule 4003(c). The Trustee has not met his burden to prove that there should be another construction of the statute resulting in a different conclusion. Accordingly, the Trustee’s objection to Debtors’ exemption is overruled and Debt- or Maryella Sue Loyd is allowed an exemption for a loss of consortium award up to $50,000. IT IS SO ORDERED." }, { "docid": "12411909", "title": "", "text": "§ 26-2-112 (2000); see also Rhodes v. Stewart, 705 F.2d 159, 161-62 (6th Cir.1983) (holding that Tennessee's \"opt-out” statute is constitutional). . Tennessee Code Annotated § 26-2-103 (2001) grants debtors an exemption in personal property in the aggregate amount of $4,000.00. . The record before the court will not support a determination of whether Mr. Chapman is, or is not, a dependent of Mrs. Chapman. The court does not, however, find the issue of whether Mr. Chapman is, or is not, a dependent of Mrs. Chapman material to the resolution of the Trustee’s Objection because the Trustee does not dispute Mrs. Chapman’s entitlement to the $7,500.00 attributable to the personal bodily injury she sustained in the December 17, 2004 automobile accident. . Tennessee Code Annotated § 26-2-111, which was enacted in 1980 as part of the same legislation as § 26-2-112, \"opting-out” of the federal bankruptcy exemptions, mirrors the language of the federal statute, 11 U.S.C. § 522(d)(ll)(D), with the exception of Tennessee’s $15,000.00 aggregate cap, for which there is none under the federal statute, and the $7,500.00 \"personal bodily injury” limitation in comparison to a $20,200.00 limitation under 11 U.S.C. § 522(d)(ll)(D). . The overwhelming majority of bankruptcy courts addressing the issue of whether loss of consortium claims fall within \"personal bodily injury” exemption have allowed the exemption, in part, due to its derivative nature. See In re Bippert, 311 B.R. 456, 471-72 (Bankr. W.D.Tex.2004) (allowing an exemption under § 522(d)(l 1)(D) and Texas law); Longhenry v. Wyatt (In re Longhenry), 246 B.R. 234, 238 (Bankr.D.Md.2000) (allowing the exemption under § 522(d)(ll)(D) and Maryland law); In re Dealey, 204 B.R. 17 (Bankr.C.D.Ill.1997) (allowing the exemption under the Illinois statute and state law); In re Young, 93 B.R. 590, 594 (Bankr.S.D.Ohio 1988) (allowing the exemption under the similarly-worded Ohio statute and state law); but see In re McWhorter, 2006 Bankr.LEXIS 722, at *6 (Bankr. D.S.C. Mar. 24, 2006) (stating that under South Carolina law, \"[c]onsequential damages, such as loss of consortium, medical and hospital expenses, etc., are generally held not to constitute ‘bodily injuries’....”) (citation omitted). . Loss of consortium" }, { "docid": "16054675", "title": "", "text": "property. As a result, any discussion of the exemption of the pre-petition insurance settlement funds is irrelevant. The relevant inquiry before the court is whether the debtors are entitled to an exemption in the post-petition arbitration award. At the time the debtors filed their petition in bankruptcy, they possessed a claim against their insurance company. That claim became part of their bankruptcy estate as did the arbitration award subsequently paid by the insurance company to satisfy the debtors’ claim. The trustee contends, however, that “Charles D. Turner is not entitled to an exemption for any amount of the proceeds from the arbitration award under Ohio Rev.Code § 2329.66 because he did not suffer a personal bodily injury which is a prerequisite for exempting property under the statute” (Doc. 41 at 5). In Ohio, a claim for loss of consortium is a derivative action, deriving from a spouse’s claim for bodily injury. Tomlinson v. Skolnik, 44 Ohio St.3d 11, 14, 540 N.E.2d 716, 719 (1989). Although it is presently unclear whether a claim for loss of consortium is regarded — for all purposes — as a separate bodily injury under Ohio law, such a distinction is of no import to the exemption statute at issue. Ohio Rev.Code § 2329.66(A)(12) does not limit the availability of its exemption to only those situations where a debtor personally suffers a bodily injury. Under the express terms of the statute, a person [here, Mr. Turner] is entitled to an exemption in “a payment ... on account of personal bodily injury ... of the person [Mr. Turner] or an individual [Mrs. Turner] for whom the person [Mr. Turner] is a dependent: A careful reading of the statute makes it clear that Mrs. Rockefeller need not suffer actual physical injury. For her to claim this exemption she must either personally suffer an injury or an individual of whom she is dependent must suffer the injury. She is entitled to this exemption under the latter alternative. In re Rockefeller, 100 B.R. 874, 876 n. 3 (Bankr.E.D.Mich.1989), affd 109 B.R. 725 (E.D.Mich.1989). By definition if an action is derivative," }, { "docid": "6198225", "title": "", "text": "to cover payments in compensation for actual bodily injury, such as the loss of a limb, and is not intended to include the attendant costs that accompany such a loss, such as medical payments, pain and suffering, or loss of earnings. Those items are handled separately by the bill.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 361-62 (1977) U.S.Code Cong. & Admin.News 1978 at pp. 5787, 6316-17. 21. The legislative history of Md.Cts. and Jud.Proc.Code Ann. § 11-504(b)(2) is virtually nonexistent. Accordingly, the Court’s analysis will turn to judicial interpretations of the statute. Exemptions in Maryland are liberally construed, In re Taylor, 312 Md. 58, 71 n. 5, 537 A.2d 1179 (1988). While no Maryland state court has construed the personal injury exemption, the U.S. District Court for the District of Maryland examined its underlying purpose in the case of Niedermayer v. Adelman, 90 B.R. 146 (D.Md.1988). There, Judge Niemeyer stated that the statute is a legislative recognition that the human body may not be used to satisfy a money judgment. Id. at 148. Similarly, money payable for personal injury, representing legal restoration of the human body, is protected from attachment as “[t]he most personal exemption other than health aids.” Id. at 149. 22. Embarking upon the second part of the analysis under the Supremacy Clause, that of determining whether the state and federal statutes are in actual conflict, this Court finds no conflict. Both statutes contain provisions exempting money payable in the event of personal injury, and both statutes were enacted for the purpose of preserving debtors’ human capital. That the state statute provides a more generous exemption is of no moment. England v. Golden (In re Golden), 789 F.2d 698, 700 (9th Cir.1986); McManus v. Avco Financial Services of Louisiana, Inc. (In re McManus), 681 F.2d 353, 355 (5th Cir.1982); In re Sullivan, 680 F.2d 1131, 1137 (7th Cir.1982); Cheeseman v. Nachman, 656 F.2d 60, 64 (4th Cir.1981). 23. Even under Locarno’s restrictive view of the states’ authority to legislate exemption statutes, the instant exemption provision is acceptable. Unlike in Lo-carno, the instant statute does not set up" }, { "docid": "16054676", "title": "", "text": "consortium is regarded — for all purposes — as a separate bodily injury under Ohio law, such a distinction is of no import to the exemption statute at issue. Ohio Rev.Code § 2329.66(A)(12) does not limit the availability of its exemption to only those situations where a debtor personally suffers a bodily injury. Under the express terms of the statute, a person [here, Mr. Turner] is entitled to an exemption in “a payment ... on account of personal bodily injury ... of the person [Mr. Turner] or an individual [Mrs. Turner] for whom the person [Mr. Turner] is a dependent: A careful reading of the statute makes it clear that Mrs. Rockefeller need not suffer actual physical injury. For her to claim this exemption she must either personally suffer an injury or an individual of whom she is dependent must suffer the injury. She is entitled to this exemption under the latter alternative. In re Rockefeller, 100 B.R. 874, 876 n. 3 (Bankr.E.D.Mich.1989), affd 109 B.R. 725 (E.D.Mich.1989). By definition if an action is derivative, any payment with respect to the action is “on account of’ the original or primary injury. Therefore, because any award to one spouse for loss of consortium is a payment “on account of personal bodily injury” of the other spouse, Matter of Lynn, 13 B.R. 361, 363 (Bankr.W.D.Wis.1981), and Mr. Turner is a dependent of Mrs. Turner, Mr. Turner is entitled to an exemption for loss of consortium under Ohio Rev.Code § 2329.66(A)(12). The trustee also asserts that “the exemptions should be denied because the proceeds from the arbitration do not reasonably appear to be an award for actual physical injury” (Doe. # 41 at 9): Rebecca Turner’s injuries from the automobile accident are the type characterized by damages for “pain and suffering.” Her injuries did not include the loss of limb or any broken bones, but consisted of soft tissue injuries that often occur in rear end collisions. Id. at 9-10. The problem for the trustee is that the argument in his memorandum of law discusses alleged facts that are not in evidence. As" }, { "docid": "12411910", "title": "", "text": "and the $7,500.00 \"personal bodily injury” limitation in comparison to a $20,200.00 limitation under 11 U.S.C. § 522(d)(ll)(D). . The overwhelming majority of bankruptcy courts addressing the issue of whether loss of consortium claims fall within \"personal bodily injury” exemption have allowed the exemption, in part, due to its derivative nature. See In re Bippert, 311 B.R. 456, 471-72 (Bankr. W.D.Tex.2004) (allowing an exemption under § 522(d)(l 1)(D) and Texas law); Longhenry v. Wyatt (In re Longhenry), 246 B.R. 234, 238 (Bankr.D.Md.2000) (allowing the exemption under § 522(d)(ll)(D) and Maryland law); In re Dealey, 204 B.R. 17 (Bankr.C.D.Ill.1997) (allowing the exemption under the Illinois statute and state law); In re Young, 93 B.R. 590, 594 (Bankr.S.D.Ohio 1988) (allowing the exemption under the similarly-worded Ohio statute and state law); but see In re McWhorter, 2006 Bankr.LEXIS 722, at *6 (Bankr. D.S.C. Mar. 24, 2006) (stating that under South Carolina law, \"[c]onsequential damages, such as loss of consortium, medical and hospital expenses, etc., are generally held not to constitute ‘bodily injuries’....”) (citation omitted). . Loss of consortium consists of several elements, encompassing not only tangible services provided by a family member, but also intangible benefits each family member receives from the continued existence of other family members. Such benefits include attention, guidance, care, protection, training, companionship, cooperation, affection, love, and in the case of a spouse, sexual relations. Jordan, 984 S.W.2d at 602. . Consortium is defined as: “the conjugal fellowship of husband and wife, and the right of each to the company, cooperation, affection and aid of the other in every conjugal relation\" ... loss of consortium is a right of action separate from that of the husband for his damage, ... loss of services is a part of the loss of consortium, and ... both loss of services and loss of consortium must be proven by the wife. Swafford v. Chattanooga, 743 S.W.2d 174, 178 (Tenn.Ct.App. 1987) (quoting Manning v. Altec, Inc., 488 F.2d 127, 132 (6th Cir.1973)); Jackson, 776 S.W.2d at 116-17." }, { "docid": "16572260", "title": "", "text": "individual of whom the debtor was a dependent. The Trustee argues that a loss of consortium is not a personal bodily injury, and relies on the plain meaning of the statute. The Debtors argue that Illinois law treats the loss of consortium as a personal injury, and that Illinois lawyers use the terms “personal injury\"’ and “personal bodily injury” interchangeably. Neither party cited an Illinois case on this issue. While Illinois courts have not addressed the issue, bankruptcy courts interpreting exemption statutes from other states and the federal exemption statute have found a loss of consortium to be exempt because it is derived from the spouse’s personal bodily injury. See, In re Turner, 190 B.R. 836, 840-41 (Bankr.S.D.Ohio 1996) (Loss of consortium is a derivative action, deriving from a spouse’s claim for bodily injury under Ohio law); In re Young, 93 B.R. 590, 594-95 (Bankr.S.D.Ohio 1988); In re Starr, 101 B.R. 274, 275 (Bankr.E.D.Okla.1988) (Consortium action, though derivative, is founded on a personal bodily injury action under Oklahoma law); In re Loyd, 86 B.R. 663, 664 (Bankr.W.D.Okla.1988); In re Carlson, 40 B.R. 746, 748 (Bankr.D.Minn.1984) (Minnesota personal injury exemption includes loss of consortium); In re Lynn, 13 B.R. 361, 363 (Bankr.W.D.Wis.1981) (Loss of consortium is on account of actual bodily injury and therefore exempt under 11 U.S.C. § 522(d)(ll)(D)). Exemption statutes should be liberally construed in favor of the debtor. If it is possible to construe an exemption statute in ways that are both favorable and unfavorable to a debtor, then the favorable method should be chosen. In re Barker, 768 F.2d 191, 196 (7th Cir.1985); In re Jackson, 95 B.R. 590, 593 (Bankr.C.D.Ill.1989). Given this liberal construction of exemption statutes and the case law on this issue, the Court is persuaded that the Debtors’ claim for loss of consortium is exempt pursuant to 735 ILCS 5/12 — 1001(h)(4). For the foregoing reasons, the Trustee’s Objection to Claim of Exemption filed November 25,1996, is denied. This Opinion is to serve as Findings of Fact and Conclusions of Law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure." }, { "docid": "16054679", "title": "", "text": "expenses from property which the debtor exempts.” Waldschmidt v. Commissioner of Internal Revenue Service (In re Lambdin), 33 B.R. 11, 13 (Bankr.M.D.Tenn.1983). Accord, In re Duby, 98 B.R. 126, 127 (Banlcr.D.R.I.1989). For the foregoing reasons, it is hereby ORDERED that the debtors, Rebecca K. Turner and Charles D. Turner, are each allowed an exemption of $5,000 in the post-petition arbitration award. . On April 7, 1993, the court authorized Katherine L. Billingham to continue representing the debtors in their personal injury case. Doc. #15. . Lester v. Storey (In re Lester), 141 B.R. 157 (S.D.Ohio 1991). . Fed.R.Bankr.P. 4003(c) provides that \"the objecting party has the burden of proving that the exemptions are not properly claimed.” . Although a trustee does possess powers to avoid certain pre-petition transfers by the debtor in order to bring back the transferred property into a debtor's estate, e.g., § 547 (preferential transfers) and § 548 (fraudulent transfers), those types of provisions of the Bankruptcy Code are not relevant in the instant proceeding. . \"Consortium consists of society, services, sexual relations and conjugal affection which includes companionship, comfort, love and solace.” Clouston v. Remlinger Oldsmobile Cadillac, Inc., 22 Ohio St.2d 65, 258 N.E.2d 230 (1970). .The Supreme Court of Ohio held in its syllabus to Tomlinson v. Skolnik that \"[ajbsent a definitional provision in the insurance policy to the contrary, a claim for loss of consortium deriving from bodily injury sustained by a spouse, is not a separate bodily injury for purposes of the single person limit of liability of an automobile liability insurance policy.\" 44 Ohio St.3d at 11, 540 N.E.2d at 716 (emphasis supplied). Subsequently, in a wrongful death suit, the Supreme Court of Ohio explicitly cast doubt on the continued validity of Tomlinson. See Cincinnati Insurance Co. v. Phillips, 52 Ohio St.3d 162, 556 N.E.2d 1150 (1990). . The statute in In re Rockefeller is substantially identical to the exemption statute in this proceeding. . Ohio Rev.Code § 3103.03 imposes an obligation of mutual support upon married persons. .For other cases permitting a debtor an exemption for loss of consortium, see Matter" }, { "docid": "3533398", "title": "", "text": "2329.662. Ohio Rev.Code § 2329.66(A)(12) provides, in part: (A) Every person who is domiciled in this state may hold property exempt from execution, garnishment, attachment or sale to satisfy a judgment or order as follows: (12) The person’s right to receive, or moneys received during the preceding twelve calendar months from any of the following: (c) A payment, not to exceed five thousand dollars, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the person or an individual for whom the person is a dependent; Accordingly, a debtor can claim as exempt up to $5,000 of any payment on account of personal bodily injury, excluding amounts compensating the debtor for pain and suffering and actual monetary loss. Difficulty often arises, as it does in this case, where a debtor receives money as a result of a lump sum award or general jury verdict, since such awards frequently fail to divide any of the money into its various component parts (i.e., money for pain and suffering, lost past and future wages, loss of consortium, etc.). Who has the initial burden of proving which parts of the award represent compensation for the various exempt and non-exempt categories is the question of law before this Court. When a party objects to a debt- or’s claim of exemption, it is the burden of the objecting party to prove that the exemption is not properly claimed. Bankruptcy Rule 4003(c). This burden is satisfied where the objecting party introduces evidence which rebuts the “•prima facie effect of the claim of exemption.” In re Hollar, 79 B.R. 294 (Bankr.S.D.Ohio 1987) (Sellers, J.). Such a rebuttal shifts the burden to the debtor to demonstrate that the exemption is proper. In the action before this Court, the Debtor claimed $5,000 of the malpractice settlement as exempt under Ohio Rev. Code § 2329.66(A)(12)(C). Thus, it is her implied contention that at least $5,000 of the settlement represents an award other than for pain and suffering or actual pecuniary loss, which are both specifically nonexempt under the Ohio statute. The Trustee claims," }, { "docid": "18548375", "title": "", "text": "their entitlement to an exemption. See 11 U.S.C. § 522(b)(1); O.R.C. § 2829.662. Ohio Revised Code § 2329.66(A)(12)(c) provides an exemption for: [a] payment, not to exceed five thousand dollars, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the person or an individual for whom the person is a dependent!!] The Trustee has failed to meet his burden of proof in challenging Daniel’s entitlement to a $5,000.00 exemption under O.R.C. § 2329.66(A)(12)(c). See Lester v. Storey (In re Lester), 141 B.R. 157, 164 (S.D.Ohio 1991) (held that trustee failed to rebut prima facie effect of claimed exemption where it reasonably appeared that injury was substantial enough to reasonably account for value of claimed exemption); see also In re Yohnke, 13 B.R. 121 (Bankr.N.D.Ohio 1981) (concluding that injury which caused the debtor to walk with a limp represented a personal bodily injury within the meaning of O.R.C. § 2329.66(A)(12)(c)); cf. In re Bates, 123 B.R. 38, 40 (Bankr.S.D.Ohio 1990) (granting exemption where debtor suffered injury which caused him loss of work). Under Ohio law, a debtor may claim an exemption for personal bodily injury to a person “for whom the person is a dependent”. O.R.C. § 2329.66(A)(12)(e); In re Turner, 190 B.R. 836, 841 (Bankr.S.D.Ohio 1996) (citations omitted). Nevertheless, the Trustee has carried his burden of establishing that Yolanda is not entitled to such an exemption. Furthermore, even if this Court could conclude that § 2329.66(A)(12)(c) provides an exemption for loss of consortium, the Trustee has satisfied the Court that any claim of an exemption by Yolanda for loss of consortium is unfounded. Whether the Debtors are Entitled to an Exemption Under O.R.C. § 2329(A)(12)(d) Ohio Revised Code § 2329.66(A)(12)(d) provides an exemption for: [a] payment in compensation for loss of future earnings of the person or an individual of whom the person is or was a dependent, to the extent reasonably necessary for the support of the debtor and any of his dependents. The Trustee has sustained his burden of establishing that the Proceeds do not represent compensation for loss" }, { "docid": "16054674", "title": "", "text": "re Bronner, supra, 135 B.R. at 647, and “[n]o exempt proceeds exist prior to the commencement of bankruptcy proceedings.” In re Rundlett, 153 B.R. 126, 134 (S.D.N.Y.1993). In the instant proceeding, then, the funds received from Mr. Clay’s insurance company and disposed of prior to the commencement of the debtors’ bankruptcy case never became part of the estate’s pool of assets from which the debtors are entitled to claim their exemptions; Roeder v. Ziegler (In re Ziegler), 156 B.R. 151, 154 (Bankr.W.D.Pa.1993). See also Williams v. Giamanco (In re Starr), 123 B.R. 314 (Bankr.S.D.Ill.1991) (pre-petition payment, no longer in debtor’s possession at filing of bankruptcy petition, “cannot be counted against the debtor’s personal injury exemption that arose upon filing bankruptcy.”). The reference in Ohio Rev.Code § 2329.66(A)(12) to “moneys received during the preceding twelve calendar months” would have made any of the pre-petition insurance payment still in the debtors’ possession at the time they filed their bankruptcy petition “eligible” for an exemption, but that section does not operate to expand § 541’s definition of estate property. As a result, any discussion of the exemption of the pre-petition insurance settlement funds is irrelevant. The relevant inquiry before the court is whether the debtors are entitled to an exemption in the post-petition arbitration award. At the time the debtors filed their petition in bankruptcy, they possessed a claim against their insurance company. That claim became part of their bankruptcy estate as did the arbitration award subsequently paid by the insurance company to satisfy the debtors’ claim. The trustee contends, however, that “Charles D. Turner is not entitled to an exemption for any amount of the proceeds from the arbitration award under Ohio Rev.Code § 2329.66 because he did not suffer a personal bodily injury which is a prerequisite for exempting property under the statute” (Doc. 41 at 5). In Ohio, a claim for loss of consortium is a derivative action, deriving from a spouse’s claim for bodily injury. Tomlinson v. Skolnik, 44 Ohio St.3d 11, 14, 540 N.E.2d 716, 719 (1989). Although it is presently unclear whether a claim for loss of" }, { "docid": "16572259", "title": "", "text": "OPINION LARRY. L. LESSEN, Bankruptcy Judge. The issue before the Court is whether a claim for “loss of consortium” is exempt pursuant to 735 ILCS 5/12-1001(h)(4). The material facts are not in dispute. The Debtors, Gilbert and Alice Dealey, filed their petition pursuant to Chapter 7 of the Bankruptcy Code on October 15,1996. The Debtors listed as an asset of their estate a lawsuit against Aldi, Inc. The Debtors have claimed an exemption of $3,700.00 in this lawsuit pursuant to the wild card exemption of 735 ILCS 5/12 — 1001(b) and $15,000.00 pursuant to the personal bodily injury exemption of 735 ILCS 5/12 — 1001(h)(4). The Trustee filed a timely objection to the exemption claim on the grounds that the “claim is not for personal injury”. 735 ILCS 5/12 — 1001(h)(4) provides in pertinent part as follows: The following personal property, owned by the debtor, is exempt from judgment, attachment, or distress for rent: ‡ (h)(4) a payment, not to exceed $7,500 in value, on account of personal bodily injury of the debtor or an individual of whom the debtor was a dependent. The Trustee argues that a loss of consortium is not a personal bodily injury, and relies on the plain meaning of the statute. The Debtors argue that Illinois law treats the loss of consortium as a personal injury, and that Illinois lawyers use the terms “personal injury\"’ and “personal bodily injury” interchangeably. Neither party cited an Illinois case on this issue. While Illinois courts have not addressed the issue, bankruptcy courts interpreting exemption statutes from other states and the federal exemption statute have found a loss of consortium to be exempt because it is derived from the spouse’s personal bodily injury. See, In re Turner, 190 B.R. 836, 840-41 (Bankr.S.D.Ohio 1996) (Loss of consortium is a derivative action, deriving from a spouse’s claim for bodily injury under Ohio law); In re Young, 93 B.R. 590, 594-95 (Bankr.S.D.Ohio 1988); In re Starr, 101 B.R. 274, 275 (Bankr.E.D.Okla.1988) (Consortium action, though derivative, is founded on a personal bodily injury action under Oklahoma law); In re Loyd, 86 B.R. 663," }, { "docid": "10235805", "title": "", "text": "of this section, the following property shall be reserved to every person residing in the state, exempt from attachment or execution and every other species of forced sale for the payment of debts, except as herein provided: 21. Such person’s interest in a claim for personal bodily injury, death or worker’s compensation claim, for a net amount not in excess of Fifty Thousand Dollars ($50,000.00), but not including any claim for exemplary or punitive damages. Thus, we must determine whether a spouse’s claim for lost consortium is an “interest in” the other spouse’s claim for personal bodily injury. The Oklahoma courts refer to a consortium action as deriving from the personal injury action. See, Baker v. Locke Supply Company, 736 P.2d 155 (Okla.1987); Walker v. St. Louis—San Francisco Ry. Co., 646 P.2d 593 (Okla.1982); Laws v. Fisher, 513 P.2d 876 (Okla.1973). Where, under state law or federal law, the consortium action is considered to be a derivative action of the other spouse’s personal injury action, the consortium award has been held to be exempt. In re Carlson, 40 B.R. 746 (Bankr.D.Minn.1984) (Consortium action is a right of action for injury to the person of the debtor or of a relative); In the Matter of Lynn, 13 B.R. 361 (Bankr.W.D.Wis.1981) (Consortium award is “on account of” the spouse’s injury); see also In re Keyworth, 47 B.R. 966 (D.Colo.1985); and In re Sidebotham, 77 B.R. 504 (Bankr.E.D.Pa.1987). The Oklahoma Supreme Court has recently clarified its position on exemptions. This court is committed to the rule that statutes exempting property from forced sale for the payment of debts are to be given a reasonable construction to effect their intent and purpose and in case of doubt the doubt is to be resolved in favor of the exemption, (citations omitted). In re Siegmann, 59 OBAJ 1357 (Okla.1988). A reasonable construction of the involved exemption statute leads the court to conclude that a spouse is entitled to exempt an award based on lost consortium resulting from injury to the other spouse. The burden of proving that a debtor is not entitled to a claimed exemption" }, { "docid": "12411902", "title": "", "text": "to cover payments in compensation of actual bodily injury, such as the loss of a limb, and is not intended to include the attendant costs that accompany such a loss, such as medical payments, pain and suffering, or loss of earnings.” In re Haga, 48 B.R. 492, 495 (Bankr. E.D.Tenn.1985) (quoting H.R. Rep. No. 595, 95th Cong., 1st Sess. 362, reprinted in 1978 U.S.C.C.A.N. 5963, 6318); see also In re Chaney, 151 B.R. 147, 149 (Bankr. W.D.Tenn.1993). “It is the consensus among the overwhelming majority of the courts having faced this issue that compensation designated purely for ‘personal bodily injury’ is exempt ‘so long as the money is specifically not intended as compensation for pain and suffering or actual pecuniary loss.’ ” In re Barner, 239 B.R. 139, 143 (Bankr.W.D.Ky.1999) (quoting Lester v. Storey (In re Lester), 141 B.R. 157, 164 (Bankr.S.D.Ohio 1991)). There is no dispute between the Trustee and the Debtors that Mrs. Chapman suffered bodily injuries and that Mr. Chapman’s claim did not “include actual physical injuries.” Stmt. Undisp. Faots at ¶4. Therefore, for Mr. Chapman’s disputed exemption to fall within the scope of § 26-2-lll(2)(B), his loss of consortium claim must have a causal connection to Mrs. Chapman’s injuries and must not constitute an attendant loss. “Loss of consortium” has been defined by Tennessee courts as follows: The term [consortium] has developed to include the right of the wife to the soci ety and comfort of the husband, and is now used interchangeably to denote the affection, aid, assistance, companionship, comfort, and society of either spouse; and as thus employed the term has been defined as, those duties and obligations which by marriage both husband and wife take on themselves toward each other in sickness and health; conjugal affection; conjugal fellowship; conjugal society and assistance; the conjugal society arising by virtue of the marriage contract; the consort’s affection, society, or aid; the person’s affection, society or aid; the person, affection, assistance, and aid of the spouse. The loss of consortium is the loss of any or all of these rights. Moyer v. Herman, 1987 Tenn.App. LEXIS" }, { "docid": "16054677", "title": "", "text": "any payment with respect to the action is “on account of’ the original or primary injury. Therefore, because any award to one spouse for loss of consortium is a payment “on account of personal bodily injury” of the other spouse, Matter of Lynn, 13 B.R. 361, 363 (Bankr.W.D.Wis.1981), and Mr. Turner is a dependent of Mrs. Turner, Mr. Turner is entitled to an exemption for loss of consortium under Ohio Rev.Code § 2329.66(A)(12). The trustee also asserts that “the exemptions should be denied because the proceeds from the arbitration do not reasonably appear to be an award for actual physical injury” (Doe. # 41 at 9): Rebecca Turner’s injuries from the automobile accident are the type characterized by damages for “pain and suffering.” Her injuries did not include the loss of limb or any broken bones, but consisted of soft tissue injuries that often occur in rear end collisions. Id. at 9-10. The problem for the trustee is that the argument in his memorandum of law discusses alleged facts that are not in evidence. As previously mentioned, the only evidence before the court is contained in the agreed stipulations of the parties, and the stipulations do not contain any evidence enabling the court to distinguish among compensation for personal bodily injury, pain and suffering, or actual pecuniary loss. The court, therefore, finds that the trustee has not carried his burden of proof to establish that the proceeds from the arbitration cannot be reasonably allocated to physical bodily injury. Finally, the trustee maintains that any exemption granted to the debtors “should be reduced, pro rata, in an amount proportionate to Ms. Billingham’s contingency fee, Thirty-Three Percent (33%)” (Doc. 41 at 11). The general rule in bankruptcy cases is that “[pjroperty that the debtor exempts ... is not liable for payment of any administrative expense_” 11 U.S.C. § 522(k) (emphasis supplied). There are two statutory exceptions to this provision, but they are inapplicable in the instant case. “The debtor is not liable for expenses incurred by the estate and, contrary to the trustee’s contention, § 522(k). explicitly forbids the payment of these" }, { "docid": "14438797", "title": "", "text": "claim of an exemption for payment on account of a personal injury and construed the following language of § 2329.66 of the Ohio Revised Code: (A) Every person who is domiciled in this state may hold property exempt from execution, garnishment, attachment, or sale to satisfy a judgment or order as follows: (12) The person’s right to receive, or moneys received during the preceding twelve calendar months from any of the following: (e) A payment, not to exceed five thousand dollars, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the person or an individual for whom the person is a dependent. These courts have generally determined that this language allows a debtor a maximum exemption of five thousand dollars ($5,000.00) from the proceeds of a personal injury settlement separate from payment for pain and suffering or lost wages. See In re Brooks, supra; In re Yohnke, supra. Accordingly, the debtor John Franklin Young’s claim for a five thousand dollars ($5,000.00) exemption pursuant to § 2329.66(A)(12)(c) is allowed. The trustee resists an exemption to Flora Young since her claim “for loss of consortium and services of her husband was not a personal bodily injury” (Doc. 25 at 4). There are apparently no reported cases directly interpreting § 2329.66(A)(12)(c) in connection with a spouse’s claim for loss of consortium; nevertheless, a review of existing decisions persuades this court that Ohio law would allow an exemption pursuant to § 2329.66(A)(12)(c), not to exceed five thousand dollars ($5,000.00), for a spouse’s loss of consortium. After reciting the historical development of the recognition of a spouse’s (specifically a wife’s) right to recover for a loss of consortium, the Ohio Supreme Court in the syllabus of Clouston v. Remlinger Oldsmobile Cadillac, Inc., 22 Ohio St.2d 65, 258 N.E.2d 230 (1970) held, 1. A husband and wife have, in the marriage relation, equal rights which will receive equal protection of the law. 2. A wife has a cause of action for damages for the loss of the consortium of her husband against a person who negligently injures" }, { "docid": "6198224", "title": "", "text": "under the Supremacy Clause. 20. The legislative history of the federal exemptions found in Section 522(d) of the Bankruptcy Code was examined in Lo-carno. Id. at 629. The federal exemptions in the Bankruptcy Code were enacted to ensure that a debtor coming out of the bankruptcy process retains sufficient possessions to obtain a fresh start. Id. Congress has indicated that the property required for a fresh start includes human capital and property in the form of health aids necessary to preserve such human capital. See 11 U.S.C. § 522(d)(ll)(D) (1993) (exemption for “a payment, not to exceed $7,500, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependent”); 11 U.S.C. § 522(d)(ll)(A) (1993) (exemption for “an award under a crime victim’s reparation law”); 11 U.S.C. § 522(d)(9) (1993), (exemption for “[professionally prescribed health aids for the debtor or a dependent of the debtor”). The legislative history reveals that the provision “in subparagraph (D)(ll) is designed to cover payments in compensation for actual bodily injury, such as the loss of a limb, and is not intended to include the attendant costs that accompany such a loss, such as medical payments, pain and suffering, or loss of earnings. Those items are handled separately by the bill.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 361-62 (1977) U.S.Code Cong. & Admin.News 1978 at pp. 5787, 6316-17. 21. The legislative history of Md.Cts. and Jud.Proc.Code Ann. § 11-504(b)(2) is virtually nonexistent. Accordingly, the Court’s analysis will turn to judicial interpretations of the statute. Exemptions in Maryland are liberally construed, In re Taylor, 312 Md. 58, 71 n. 5, 537 A.2d 1179 (1988). While no Maryland state court has construed the personal injury exemption, the U.S. District Court for the District of Maryland examined its underlying purpose in the case of Niedermayer v. Adelman, 90 B.R. 146 (D.Md.1988). There, Judge Niemeyer stated that the statute is a legislative recognition that the human body may not be used to satisfy a money judgment. Id. at 148. Similarly," }, { "docid": "12398560", "title": "", "text": "exemption was “on account of actual bodily injury” and holds that an award for loss of consortium is such an injury, entitling the debtor to exempt the $7,500.00); In re Musgrove, 7 B.R. 892 (Bankr.W.D.Va.1981) (under state law which is identical to § 522(d)(11)(D), an unliquidated and contingent claim against an employer under Federal Employer’s Liability Act is exempt). Only two courts, Territo and Lynn, have really analyzed the real question of how to interpret the phrase “bodily injury” in § 522(d)(ll)(D). We are persuaded by their analysis and conclusion that § 522(d)(ll)(D) does not mandate the exclusion of pain and suffering damages unless pain and suffering encompasses only mental and emotional trauma or unless the Debtor’s bodily injury is clearly insufficient to merit compensation of $7,500.00 in itself. As the Territo court holds, any other interpretation of § 522(d)(11)(D) would render it virtually meaningless. Territo, supra, 36 B.R. at 670. The Lynn court goes so far as to state that the “legislative history cannot be taken seriously. It specifically excludes all of the types of losses that generally make up a personal injury award. If the legislative history for 11 U.S.C. § 522(d)(ll)(D) is used to interpret this exemption, it has no meaning. That cannot have been Congress' intent.” 13 B.R. at 362. Territo follows the reasoning of Lynn, and, having heard evidence concerning the nature of the Debtor’s injuries, the Territo court allows an exemption for monies received as compensation for those injuries. Territo, supra, 36 B.R. at 670. The Territo court characterizes Congressional intent in this area as “somewhat ambiguous.” Id. at 671. Although the one case, In re Wilson, 22 B.R. 146 (Bankr.D.Ore.1982), cited by the Debtor is factually inapposite, we agree with the proposition for which it is cited, which is that, when “the intent of the legislature is unclear, liberal interpretation of exemption laws are favored.” This principle causes us to conclude that Territo and Lynn are correct in reading § 522(d)(11)(D) broadly and only excluding damages received by a debtor solely for pain and suffering or far out of proportion to the actual" }, { "docid": "19281499", "title": "", "text": "to apply. First, courts note that Federal Rule of Bankruptcy Procedure 4003(c) provides that “[t]he objecting party has the burden of proving that the exemptions are not properly claimed. After hearing on notice, the court shall determine the issues presented by the objections.” In re Ciotta, 222 B.R. at 629; In re Bova, 205 B.R. at 476 (“[EJxemption laws are generally construed broadly in favor of claimants.”). Moreover, the prima facie presumption is that a claimed exemption is correct. See In re Dunn, 215 B.R. 121, 130 (Bankr.E.D.Mich.1997) (construing § 522(d)(10)(E)). Courts have also concluded that “[i]f the trustee fails to carry the burden of proving by a preponderance of the evidence that the exemption should be disallowed, the exemption will stand.” Id. (quoting In re Mann, 201 B.R. 910, 915 (Bankr.E.D.Mich.1996)). Therefore, in the case at bar, the Trustee must show, by a preponderance of the evidence, that the Debtor is improperly claiming the proceeds of the medical malpractice settlement as exempt. A review of the relevant case law leads this Court to conclude that § 522(d)(ll)(D) was designed to prevent exemptions based solely on pain and suffering, unaccompanied by a bodily injury. See In re Ciotta, 222 B.R. at 632. Case law also suggests that § 522(d)(ll)(D) applies to exempt awards or settlements arising from personal injuries accompanied by emotional trauma. See id. at 632-33 (“The fact that an injury is accompanied by a large amount of pain and suffering should not prevent a debtor from claiming the exemption.”). Therefore the key to understanding and applying § 522(d)(ll)(D) is defining “personal bodily injury,” as that term is used in the statute. The statute, unfortunately, fails to provide such a definition. Case law, however, suggests that in order for a debtor to utilize § 522(d)(ll)(D) the debtor must have suffered at least “appreciable” or “cognizable” physical injury. See In re Barner, 239 B.R. 139, 142 (Bankr.W.D.Ky.1999); In re Ciotta, 222 B.R. at 633. Damages for loss of a limb, physical disability, bone fractures and dislocations, and loss of consortium have all qualified for exempt status under the statute. See" } ]

[ { "docid": "13400373", "title": "", "text": "the United States, instead of adding these taxes to the U.S. price of the merchandise. Similarly, plaintiffs allege that the ITA failed to limit the amount of this adjustment by the extent to which “such taxes are added or included in the price of such or similar merchandise when sold in the country of exportation” in violation of the same provision of the law. Id. In support of their arguments, plaintiffs rely on Zenith Electronics Corp. v. U.S. 633 F.Supp. 1382 (CIT 1986) in which this court upheld plaintiffs’ position with regard to the exact same issues. The ITA admits that it departed from both the literal application of this provision in the statute and this court’s interpretation of that provision in Zenith. Commerce justifies its continued adherence to the interpretation which was rejected by the court by repeating the same argument which was raised in Zenith, namely, that a literal application of Section 772(d)(1)(C) of the Act would artificially inflate dumping margins in conflict with the Congressional purpose of this section to achieve a tax-neutral computation of dumping margins. Commerce persists “that the ITA’s treatment of taxes which have been rebated or forgiven upon exportation is rational and lawful and should have been sustained by the Court in Zenith ”. In addition, Commerce states that the agency has not developed an alternative methodology, because the decision in Zenith, did not yet become final. As an alternative to reconsidering the court’s decision in Zenith, the ITA requests this Court to abstain from remanding this issue to the agency for redetermi-nation until such time as the judgment of this court in Zenith becomes final and a new methodology to implement it can be developed by the ITA. Daewoo and Gold Star attempt to defend the ITA’s position by distinguishing the facts of this case from those in Zenith. They allege that unlike the Japanese commodity tax involved in Zenith, there is substantial evidence on the record that the Korean taxes in question are added to and included in the price of the merchandise in the home market and that the adjustment" } ]

[ { "docid": "18696348", "title": "", "text": "remanded back to the ITA to clarify its explanation of why delayed payment of home market sales expenses should not be factored into the calculation of COS adjustments to FMV and to correctly report NSK’s weighted average dumping margin for ball bearings. In addition, since as a matter of law the ITA has incorrectly adjusted USP for the Japanese VAT, and since there is no just reason for delay in the entry of final judgment on this issue, this Court is entering final judgment on this issue ordering the ITA to apply the Japanese VAT rate to USP calculated at the same point in the stream of commerce as where the Japanese VAT is applied for home market sales and add the resulting amount to USE ITA’s denial of an adjustment to FMV for Koyo, NSK and NTN’s PSPAs and rebates is affirmed. The second remand results are due within thirty (30) days of the date this opinion is entered. Comments or responses by the parties are due within thirty (30) days thereafter. Any rebuttal comments are due within fifteen (15) days of the date responses or comments are due. 19 U.S.C. § 1677a(d)(1)(C) states: (d) Adjustments to purchase price and exporter’s sales price The purchase price and the exporter’s sales price shall be adjusted by being— (1) increased by— ******* (C) the amount of any taxes imposed in the country of exportation directly upon the exported merchandise or components thereof, which have been rebated, or which have not been collected, by reason of the exportation of the merchandise to the United States, but only to the extent that such taxes are added to or included in the price of such or similar merchandise when sold in the country of exportation; * * *. The multiplier effect can be seen in the following example taken from Zenith Elecs. Corp. v. United States, 10 CIT 268, 273 n.9, 633 F. Supp. 1382, 1386 n.9 (1986), appeal dismissed, 875 F.2d 291 (Fed. Cir. 1989): Suppose the pre-tax home market price for a certain model of Japanese television is equal to $100, while" }, { "docid": "13957403", "title": "", "text": "Less Than Fair Value; Industrial Nitrocellulose from the United Kingdom, 55 Fed.Reg. 21,055, 21,056 (1990). Finally, Federal-Mogul makes no reference to the administrative record to show that the double-counting which it has alleged resulted from the ITA’s treatment of the commission offset for U.S. sales commissions has in fact occurred. Given these circumstances, this Court finds that in the absence of explicit statutory guidance, the ITA’s interpretation of the statue it is charged with administering should be given deference. Melamine Chems., Inc. v. United States, 732 F.2d 924, 928 (Fed.Cir.1984). Therefore, this Court affirms the ITA’s adjustment to FMV for U.S. sales commissions paid on ESP sales. 6. Antidumping Duty Legal Expenses Federal-Mogul argues that 19 U.S.C. § 1677a(e)(2) (1988) requires the ITA to deduct respondent’s antidumping duty related legal fees from ESP as “expenses generally incurred by or for the account of the exporter in 'the United States -in selling identical or substantially identical merchandise.” Federal-Mogul also argues that this court’s holdings in Daewoo Elees. Co. v. United States, 13 CIT 253, 269-70, 712 F.Supp. 931, 947 (1989), and Zenith Elees. Corp. v. United States, 15 CIT-,-, 770 F.Supp. 648, 651 (1991), were wrongly decided. Federal-Mogul’s Opposition at 61-65. Here Federal-Mogul raises an issue which has been previously decided by this court. In Daewoo, the court stated that legal fees do not qualify as selling expenses, and that it would also be against public policy to -make an adjustment for legal fees in calculations of dumping margins. Such practice would create artificial dumping margins and might encourage frivolous claims in order to incur legal fees which would result in increased margins. 13 CIT at 270, 712 F.Supp. at 947. In Zenith, the court stated: The fundamental reason for not allowing the [deduction] of legal expenses which are related to antidumping proceedings is that the expenses of a party’s partic ipation in legal proceedings provided by law should not become an element in the decision of those selfsame proceedings. 15 CIT at-, 770 F.Supp. at 651. This Court completely agrees with the decisions of the Daewoo and Zenith courts and" }, { "docid": "4748413", "title": "", "text": "22-30. Specifically, Torrington contends that since thé' cash deposit rate is applied to the entered value of future entries, the ITA’s policy of calculating this rate as a percentage of statutory USP rather than as a percentage of the entered value results in an under collection of cash deposits on future entries. Id. at 22-23. In order to avoid this under collection, Torrington suggests that a more accurate method for calculating the deposit rate is to represent the antidumping duty as a percentage of the entry’s entered value. This is the method that the ITA used for calculating the assessment rate. Id. Among other arguments, the defendant, Koyo and NSK contend that' there is no statute or case law requiring the cash deposit rate to equal the duty assessment rate. Defendant’s Response at 9-10; Koyo’s Memorandum, at 25; NSK’s Memorandum at 15-16. Moreover, the defendant and Koyo argue that the ITA is not required to use an identical methodology for computing both assessment rates and cash deposit rates. Defendant’s Response at 6-7; Koyo’s Memorandum at 25-27. This Court has fully addressed these arguments and adheres to its decision on this issue in Federal-Mogul Corp., 17 CIT at ---, 813 F.Supp. at 866-868. Therefore, this Court finds that the methodology used by the ITA in this review is reasonable and in accordance with law. See also Zenith Elecs. Corp. v. United States, 15 CIT 394, -, 770 F.Supp. 648, 655 (1991); Daewoo Elecs. Co. v. United States, 13 CIT 253, 283, 712 F.Supp. 931, 957 (1989). 3. Treatment of Antifriction Bearings Imported into Foreign Trade Zones Torrington challenges the ITA’s treatment of antifriction bearings (“AFBs”) imported into the U.S. through foreign trade zones. Section 81b of Title 19, United States Code, provides authority for the Secretary of Commerce to set up foreign trade zones (“FTZ”) at U.S. ports of entry. This process is supervised by the Foreign Trade Zones Board and the U.S. Customs Service (“Customs”). 19 U.S.C. § 81b (1988). Pursuant to the statute, merchandise brought into a FTZ may be exempt from U.S. customs laws. The relevant provisions of" }, { "docid": "18696321", "title": "", "text": "Opinion Tsoucalas, Judge: Plaintiffs, Federal-Mogul Corporation (“Federal-Mogul”) and The Torrington Company (“Torrington”), commenced this consolidated action to challenge certain aspects of the Department of Commerce, International Trade Administration’s (“ITA”) final results in the first administrative review of imports of antifriction bearings from Japan. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Japan; Final Results of Antidumping Duty Administrative Reviews, 56 Fed. Reg. 31,754 (1991). Substantive issues raised by the parties in the underlying administrative proceeding were addressed by the ITA in the issues appendix to Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany; Final Results of Antidumping Duty Administrative Review (“Issues Appendix”), 56 Fed. Reg. 31,692 (1991). Background In Federal-Mogul Corp. v. United States, 17 CIT 88, 813 F. Supp. 856, 873 (1993), this Court remanded this case to the ITA to examine the ITA to examine the administrative record to determine the exact monetary amount of [value added tax] paid on each sale in the home market and make sure that the amount added to the comparable [United States price] sale pursuant to 19 U.S.C. § 1677a(d)(1)(C) is less than or equal to this amount, to add the full amount of [value added tax] paid in the home market to [foreign market value] without adjustment and to explain why any savings resulting from deferred payment of sales expenses should or should not be factored into the calculation of each type of [circumstance of sale] adjustment made to [foreign market value] in this review. In Torrington Co. v. United States, 17 CIT 199, 818 F. Supp. 1563, 1580-81 (1993), this Court remanded this case to the ITA to add the full amount of [value added tax] paid on each sale in the home market to [foreign market value] without adjustment and to develop a methodology which removes [post sale price adjustments] and rebates paid on sales of out of scope merchandise from any adjustment made to [foreign market value] for [post sale price adjustments] and rebates, or to deny an adjustment if a viable method cannot be found. On" }, { "docid": "18667958", "title": "", "text": "Federal-Mogul’s Motion for Judgment on the Agency Record (“SKF’s Opposition”) at 5-10; Response Brief of Defendant-intervenor NTN Bearing Corporation of America and NTN Kugellagerfabrik (Deutschland) GmbH (“NTN’s Response”) at 9-23; Memorandum of Defendant-intervenor GMN Georg Muller Nürnberg AG in Opposition to Plaintiff’s Motion for Judgment Upon the Agency Record (‘‘GMN’sMemorandum”) at 8-12; Memorandum of Defendant-intervenor FAG Kugelfischer Georg Schafer KGaA in Opposition to Plaintiff’s Motion for Judgment Upon the Agency Record (“FAG’s Memorandum”) at 8-12. For a more detailed discussion of Federal-Mogul and defendant’s arguments on these issues, see this Court’s decision in Federal-Mogul Corp. v. United States, 17 CIT 88, 92-100, 813 F. Supp. 856 (1993). This Court has fully addressed these arguments and adheres to its decision on these issues in Federal-Mogul, 17 CIT at 100, 813 F. Supp. 856 (1993). This Court finds that the ITA’s determination that 19 U.S.C. § 1677a(d)(l)(C) does not require the ITA to conduct an analysis of tax incidence in the German antifriction bearings market and that the ITA’s use of the net USP including profit as the tax base is reasonable and supported by law. In addition, this Court remands this case to the ITA to allow the ITA to add the full amount of VAT paid on home market sales to FMV without adjustment and for the ITA to examine the administrative record to determine the exact monetary amount of VAT paid on each sale in the home market and make sure that the amount added to the comparable USP sale is less than or equal to this amount in conformity with this Court’s opinion in Federal-Mogul, 17 CIT at 108, 813 F. Supp. 856 (1993). 2. Calculation of Cash Deposit Rates: In this administrative review, the ITA used two different methodologies for the actual calculation of dumping margins in cases where ESP sales were used: one for assessing duties on entries covered by the review, and the other for setting the cash deposit future entries of the subject merchandise. Final Results, 56 Fed. Reg. at 31,693-95, 31,698-702. To calculate the assessment rate for ESP sales, the ITA “divide[d] the" }, { "docid": "18625605", "title": "", "text": "which found that the ITA’s new VAT methodology is not in accordance with law. Defendant-intervenors SKF and NTN Bearing Corporation of America and NTN Kugellagerfabrik (Deutschland) GmbH (“NTN”) essentially support defendant’s arguments on this issue. Comments of SKF Regarding Final Remand Results (“SKF’s Comments”) at 1-3; NTN’s Comments on the Remand Determination of the United States Depart- merit of Commerce, International Trade Administration (“NTN’s Comments”) at 2-4. SKF emphasizes that unless the VAT rate is applied to comparable FMV and USP tax bases, application of the VAT rate to USP may result in the creation of dumping margins, a result which SKF contends cannot be allowed pursuant to the Court of Appeals for the Federal Circuit’s decision in Zenith, 988 F.2d at 1582. Response of SKF to Comments of Federal-Mogul Regarding Final Results of Redetermination (“SKF’s Response”) at 2-7. This Court remanded this issue for the ITA “to examine the administrative record to determine the exact monetary amount of VAT paid on each sale in the home market and make sure that the amount added to the comparable USP sale pursuant to 19 U.S.C. § 1677a(d)(1)(C) is less than or equal to this amount, to add the full amount of VAT paid in the home market to FMV without adjustment* * *. ” Federal-Mogul, 17 CIT at 533, 824 F. Supp. at 237. Nowhere did this Court discuss changing the ITA’s method of adding an amount to USP pursuant to 19 U.S.C. § 1677a(d)(1)(C) to account for the German VAT. ITA was only to “make sure that the amount added to the comparable USP sale pursuant to 19 U.S.C. § 1677a(d)(1)(C) is less than or equal to [the amount added to FMV] * * *.” Federal-Mogul, 17 CIT at 533, 824 F. Supp. at 237. In fact, this Court implicitly affirmed the ITA’s methodology for adjusting USP in its discussion of the tax base issue in Federal-Mogul Corp. v. United States, 17 CIT 88, 99-100, 813 F. Supp. 856, 865-66 (1993). This Court has fully addressed defendant and defendant-intervenor’s arguments on this issue and adheres to its decision in Federal-Mogul," }, { "docid": "18671850", "title": "", "text": "is based on its interpretation of the United States Court of Appeals for the Federal Circuit’s recent opinion on the VAT issue in Zenith Elecs. Corp. v. United States, 988 F.2d 1573, 1580-82 (1993). Remand Results at 2. Defendant argues that the ITA’s new methodology is in accord with Zenith, 988 F.2d at 1580-82. The court in Zenith held that the ITA was not allowed to make a COS adjustment to FMV to achieve tax neutrality by eliminating the so-called multiplier effect of 19 U.S.C. § 1677a(d)(1)(C) (1988). The court reasoned that 19 U.S.C. § 1677a(d)(1)(C) is the sole provision of the antidumping duty statute that deals with the treatment of VATs or indirect taxes. As a result, 19 U.S.C. § 1677b(a)(4)(B) (1988), which allows adjustments to FMV for differences in circumstances of sale, does not apply and cannot be used to achieve tax neutrality. Zenith, 988 F.2d at 1580-82. The court also stated that: By engaging in dumping, the exporters themselves are responsible for the multiplier effect. The multiplier effect does not create a dumping margin where one does not already exist. Only when pre-tax FMV exceeds USP and a foreign nation assesses an ad valorem domestic commodity tax does section 1677a(d)(1)(C) operate to accentuate the dumping margin. Without a dumping margin (when pretax FMV equals [or is less than] USP), even assessment of an ad valorem tax creates no multiplier effect. The multiplier effect thus occurs only when a dumping margin already exists. If a foreign manufacturer does not export its wares at less than fair value, it will not suffer disadvantage from the operation of section 1677a(d)(1)(C). Moreover, the enactment history of section 1677a(d)(1)(C) does not suggest that Congress sought tax neutrality when it fashioned the adjustment provision. Zenith, 988 F.2d at 1581-82. It is clear from this statement that tax neutrality is irrelevant to the proper application of 19 U.S.C. § 1677a(d)(1)(C). See also Federal-Mogul Corp. v. United States, 17 CIT 88, 99, 813 F. Supp. 856, 864-65. Defendant argues that the court in Zenith only decided that the ITA could not make a COS adjustment" }, { "docid": "18625603", "title": "", "text": "Comments”) at 3-23. In its Remand Results, as instructed by this Court, the ITA added the amount of VAT paid on each sale in the home market to FMV without making a COS adjustment to this amount. In addition and on its own initiative, the ITA added the exact same amount to USP instead of following its usual practice of applying the ad valorem VAT rate to the net USP after all adjustments had been made and adding this amount to USE Remand Results at 2-5; see Final Results, 56 Fed. Reg. at 31,729. ITA’s rationale for its new approach is based on its interpretation of the United States Court of Appeals for the Federal Circuit’s recent decision on the VAT issue in Zenith Elecs. Corp. v. United States, 988 F.2d 1573, 1580-82 (Fed. Cir. 1993). Remand Results at 2. ITA implemented its stated methodology only for respondents whose dumping margins were being recalculated on remand for some other reason and for respondents who did not participate in the Second Administrative Review because the ITA’s new methodology only changes cash deposit rates which are no longer in effect for all respondents. Id. at 4-5. Defendant argues that the ITA’s new VAT methodology is responsive to this Court’s remand order. Specifically, the defendant argues that this new methodology adds the full amount of VAT to FMV ensures that the tax adjustment made to USP is not greater than the amount of VAT added to FMV and does not make a COS adjustment to the amount of VAT added to FMV Remand Results at 2-5; Defendant’s Rebuttal to Federal-Mogul Corporation’s Comments Concerning Defendant’s Final Results of Redetermination Pursuant to Court Order (“Defendant’s Comments”) at 2. For a detailed discussion of Federal-Mogul and defendant’s arguments on this issue, see this Court’s decision in Federal-Mogul Corp. v. United States, 17 CIT 1093, 1095-98, 834 F. Supp. 1391, 1394-96 (1993). Defendant requests this Court to reconsider its recent decisions in Federal-Mogul Corp. v. United States, 17 CIT 1093, 834 F. Supp. 1391, Torrington Co. v. United States, 17 CIT 1113, 834 F. Supp 1384 (1993)," }, { "docid": "18625602", "title": "", "text": "of circumstance of sale (“COS”) adjustments to FMV; reinstated the less-than-fair-value (“LTFV”) “all others” rate for entries made between May 1, 1992 and June 23, 1992, which have as yet not become subject to a subsequent administrative review; and corrected errors in the final margin computer programs for SKF USA Inc. and SKF GmbH (“SKF”) and INA Walzlager Schaeffler KG and INA Bearing Company, Inc. (“INA”). Remand Results at 2-13. Discussion ITA’s final results filed pursuant to a remand will be sustained un-less that determination is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence is “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Alhambra Foundry Co. v. United States, 12 CIT 343, 345, 685 F. Supp. 1252, 1255 (1988). 1. Value Added Tax: Federal-Mogul challenges the ITA’s treatment of the German VAT. Federal-Mogul Corporation’s Comments Concerning Defendant’s Final Results of Redetermination Pursuant to Court Remand (“Federal-Mogul’s Comments”) at 3-23. In its Remand Results, as instructed by this Court, the ITA added the amount of VAT paid on each sale in the home market to FMV without making a COS adjustment to this amount. In addition and on its own initiative, the ITA added the exact same amount to USP instead of following its usual practice of applying the ad valorem VAT rate to the net USP after all adjustments had been made and adding this amount to USE Remand Results at 2-5; see Final Results, 56 Fed. Reg. at 31,729. ITA’s rationale for its new approach is based on its interpretation of the United States Court of Appeals for the Federal Circuit’s recent decision on the VAT issue in Zenith Elecs. Corp. v. United States, 988 F.2d 1573, 1580-82 (Fed. Cir. 1993). Remand Results at 2. ITA implemented its stated methodology only for respondents whose dumping margins were being recalculated on remand for some other reason and for respondents who did not participate in the Second Administrative Review because the ITA’s" }, { "docid": "18625600", "title": "", "text": "Opinion Tsoucalas, Judge: Plaintiff Federal-Mogul Corporation (“Federal-Mogul”) commenced this action to challenge certain aspects of the Department of Commerce, International Trade Administration’s (“ITA”) final results in the first administrative review of imports of antifriction bearings from the Federal Republic of Germany. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany; Final Results of Antidumping Duty Administrative Review (“Final Results”), 56 Fed. Reg. 31,692 (1991). Background In Federal-Mogul Corp. v. United States, 17 CIT 525, 533, 824 F. Supp. 230, 237 (1993), this Court remanded this case to the ITA to examine the administrative record to determine the exact monetary amount of [value added tax] paid on each sale in the home market and make sure that the amount added to the comparable [United States price] sale pursuant to 19 U.S.C. § 1677a(d)(1)(C) is less than or equal to this amount, to add the full amount of [value added tax] paid in the home market to [foreign market value] without adjustment, to explain why any savings resulting from deferred payment of sales expenses should or should not be factored into the calculation of each type of [circumstance of sale] adjustment made to [foreign market value] in this review, to reinstate the less-than-fair-value “all others” rate for entries made between May 1, 1992 and June 23, 1992, which have as yet not become subject to a subsequent administrative review, and to correct the computer errors in regard to SKF and INA’s dumping margins. On September 2, 1993, the ITA filed with this Court its Final Results of Redetermination Pursuant to Court Remand, Federal-Mogul Corporation v. United States Slip Op. 93-96 (June 4, 1993) (“Remand Results ”). In its Remand Results, the ITA: for certain respondents added to foreign market value (“FMV”) the amount of value added tax (“VAT”) paid on sales of the subject merchandise in the home market without adjustment and also added the exact same amount to United States price (“USP”); explained in greater detail why savings realized from delayed payment of home market sales expenses should not be factored into the calculation" }, { "docid": "4748414", "title": "", "text": "25-27. This Court has fully addressed these arguments and adheres to its decision on this issue in Federal-Mogul Corp., 17 CIT at ---, 813 F.Supp. at 866-868. Therefore, this Court finds that the methodology used by the ITA in this review is reasonable and in accordance with law. See also Zenith Elecs. Corp. v. United States, 15 CIT 394, -, 770 F.Supp. 648, 655 (1991); Daewoo Elecs. Co. v. United States, 13 CIT 253, 283, 712 F.Supp. 931, 957 (1989). 3. Treatment of Antifriction Bearings Imported into Foreign Trade Zones Torrington challenges the ITA’s treatment of antifriction bearings (“AFBs”) imported into the U.S. through foreign trade zones. Section 81b of Title 19, United States Code, provides authority for the Secretary of Commerce to set up foreign trade zones (“FTZ”) at U.S. ports of entry. This process is supervised by the Foreign Trade Zones Board and the U.S. Customs Service (“Customs”). 19 U.S.C. § 81b (1988). Pursuant to the statute, merchandise brought into a FTZ may be exempt from U.S. customs laws. The relevant provisions of 19 U.S.C. § 81c(a) (1988) state: (a) Handling of merchandise in zone; shipment of foreign merchandise into customs territory; appraisal; reshipment to zone Foreign and domestic merchandise of every description, except such as is prohibited by law, may, without being subject to the customs laws of the United States, except as otherwise provided in this chapter, be brought into a zone and may be ... mixed with foreign or domestic merchandise, or otherwise manipulated, or be manufactured except as otherwise provided in this chapter, and be exported, destroyed, or sent into customs territory of the United States therefrom, in the original package or otherwise; but when foreign merchandise is so sent from a zone into customs territory of the United States it shall be subject to the laws and regulations of the United States affecting imported merchandise: Provided, That whenever the privilege shall be requested and there has been no manipulation or manufacture effecting a change in tariff classification, the appropriate customs officer shall take under supervision any lot or part of a lot of" }, { "docid": "18667966", "title": "", "text": "quantifies this adjustment to FMV in cases where FMV is compared to ESE Specifically, Federal-Mogul believes that the ITA’s method double-counts the portion of the U.S. commission which covers directly related selling expenses which have already been adjusted for in the home market pursuant to 19 C.F.R. § 353.56(a) (1991). In other words, Federal-Mogul alleges that the ITA fails to break out the direct and indirect components of the U.S. commissions on ESE sales and adjust FMV only up to the amount of the indirect component. As a result, when the ITA deducts the full amount of the U.S. commission from FMV indirect expenses, the ITA is adjusting for direct expenses such as advertising which it has already adjusted for. Federal-Mogul's Brief at 51-54. For a more detailed discussion of Federal-Mogul and defendant’s arguments on this issue, see this Court’s decision in Federal-Mogul, 17 CIT at 105, 813 F. Supp. 856 (1993). This Court has fully addressed these arguments and adheres to its decision on this issue in Federal-Mogul, 17 CIT at 106, 813 F. Supp. 856 (1993), and finds that in the absence of explicit statutory guidance, the ITA’s interpretation of the statue it is charged with administering should be given deference. Melamine Chems., Inc. v. United States, 732 F.2d 924, 928 (Fed. Cir. 1984). Therefore, this Court affirms the ITA’s adjustment to FMV for U.S. sales commissions paid on ESP sales. 6. Antidumping Duty Legal Expenses: Federal-Mogul argues that 19 U.S.C. § 1677a(e)(2) (1988) requires the ITA to deduct respondent’s antidumping duty related legal fees from ESP as “expenses generally incurred by or for the account of the exporter in the United States in selling identical or substantially identical merchandise.” Federal-Mogul also argues that this court’s holdings in Daewoo Elees. Co. v. United States, 13 CIT 253, 269-70, 712 F. Supp. 931, 947 (1989), and Zenith Elecs. Corp. v. United States, 15 CIT 394, 408, 770 F. Supp. 648, 651 (1991), were wrongly decided. Federal-Mogul’s Brief at 54-58. This Court adheres to its decision on this issue in Federal-Mogul, 17 CIT at 107, 813 F. Supp. 856 (1993)," }, { "docid": "13479877", "title": "", "text": "it accounted for the fact that the Taiwanese Commodity Tax was forgiven on exported CTVs. Commerce subtracted the amount of the forgiven commodity tax from foreign market value (“FMV”). In Zenith Elecs. Corp. v. United States, 10 CIT 268, 633 F. Supp. 1382 (1986), ap peal dismissed, 875 F.2d 291 (Fed. Cir. 1989) this Court held that § 772(d)(1)(C) of the Tariff Act of 1930 as amended, 19 U.S.C. § 1677a(d)(l)(C), requires Commerce to account for forgiven tax on exported merchandise by making an upward adjustment to United States Price (“USP”) in the amount actually forgiven on the exports. This Court has ruled that the statutory language requires Commerce to calculate the adjustment for forgiven taxes as an addition to USP in the amount of tax forgiven on exports, and to measure the extent to which tax was actually passed through to home market purchasers so that only the forgiveness of that amount of tax can enter into the calculations. The tax involved here is a 20 per cent commodity tax imposed by Taiwan on all CTVs, but then forgiven on exportation. The Court sees no difference between the Taiwanese Commodity Tax and the taxes previously found subject to this requirement. The Court has continued to adhere to this interpretation of the law, most recently in Daewoo Elecs. Co. v. United States, 13 CIT 253, 712 F. Supp. 931 (1989). The Court also notes that the only proper use of circumstances of sale adjustment in this situation would be for those circumstances of sale which do not flow from the existence of an originally determined dumping price as set out in Daewoo. This issue is remanded to Commerce with directions to determine the amount of tax passed through to home market purchasers and to add that amount to USP. Zenith next argues that, by virtue of 19 U.S.C. § 1677a(e)(2), Commerce should have deducted from USP those legal expenses which were related to the antidumping proceedings and which were paid during the period under review. Zenith claims that this falls within the law’s requirement that Commerce deduct from Exporter’s Sale" }, { "docid": "13957391", "title": "", "text": "rates and cash deposit rates. This court has previously interpreted this provision in Zenith Elecs. Corp. v. United States, 15 CIT-,-, 770 F.Supp. 648, 654-55 (1991), and in Daewoo Elecs. Co. v. United States, 13 CIT 253, 282-83, 712 F.Supp. 931, 956-57 (1989). In Zenith, the ITA used the same methodology for computing the cash deposit rate as it did in this case — it expressed the cash deposit rate as a percentage of the total statutory USP for each exporter’s sales and applied that percentage to the entered value of future imports of the subject merchandise. The Zenith court rejected the plaintiff’s contention that this methodology understates actual cash deposits and held that the ITA acted within its discretion and reasonably complied with 19 U.S.C. § 1675(a)(2). Zenith, 15 CIT at -, 770 F.Supp. at 654-55. The court concluded that “[although this [methodology] may not be the absolutely perfect procedure for setting deposits of estimated duties, it is certainly a rational one and it can certainly be justified in terms of the purposes of the law.” Id. at -, 770 F.Supp. at 655. In Daewoo,- the court stressed that the ITA has considerable discretion in selecting a methodology to compute the cash deposit rate. 13 CIT at 283, 712 F.Supp. at 957. The Daewoo court concluded that the ITA’s methodology of using USP as the denominator in computing the cash deposit rate and applying this rate to the entered value of future imports of the subject merchandise reasonably complied with 19 U.S.C. § 1675(a)(2). Id. Federal-Mogul also asserts that although cash deposit rates are estimates of future dumping liabilities, they must be “as closely tailored to actual antidumping duties as is reasonable given data available____” Federal-Mogul’s Opposition at 73-74 (quoting Badger-Powhatan v. Unit ed States, 10 CIT 241, 250, 633 F.Supp. 1364, 1373 (1986), appeal dismissed, 808 F.2d 823 (Fed.Cir.1986)). Federal-Mogul argues that if the ITA used the entered value percentage methodology for cash deposits, this would produce a more accurate deposit rate that would be closer to the actual assessment of antidumping duties. Federal-Mogul’s Opposition at 70-71. Although" }, { "docid": "13957368", "title": "", "text": "of whether FMV is reported net tax or not. Zenith Elees. Corp. v. United States (“Zenith I’), 10 CIT 268, 275-82, 633 F.Supp. 1382, 1388-94 (1986), appeal dismissed, 875 F.2d 291 (Fed.Cir.1989). A. Tax Incidence Federal-Mogul argues that the ITA is required to measure the amount of the VAT which the manufacturer in the home market passes on to the consumer. Federal-Mogul’s' Opposition at 41-46. Federal-Mogul argues that the phrase “but only to the extent that such taxes are added to or included in the price of such or similar merchandise when sold in the country of exportation” in 19 U.S.C. § 1677a(d)(l)(C) requires the ITA to make these measurements. Id. Federal-Mogul primarily relies on this court’s decision ,in Zenith I, 10 CIT at 282-91, 633 F.Supp, at 1394-401. Federal-Mogul also relies on portions of the legislative history of the Trade Act of 1974, which added this provision. See Pub.L. No. 93-618, Title III, Ch. 2, Sec. 321, 88 Stat. 1978, 2045 (1975); H.R.Rep. No. 571, 93d Cong., 1st Sess. 69 (1973). The court in Zenith I found that the phrase “but only to the extent that such taxes are added to or included in the price of such or similar merchandise when sold in the country of exportation” in 19 U.S.C. § 1677a(d)(l)(C) requires the ITA “to measure tax absorption in home market sales so as to limit the adjustment by the amount of tax passed through to home market purchasers.” 10 CIT at 291, 633 F.Supp. at 1402. The Zenith I court placed great reliance on the legislative history of the Trade Act of 1974, especially the report of the House Ways and Means Committee which stated in part: Further, an adjustment for such tax rebates would be permitted only to the extent that such taxes are added to or included in the price of such or similar merchandise when sold in the country of exportation. This is to insure that the rebate of such taxes confers no special benefit upon the exporter of the merchandise that he does not enjoy in sales in his home market. To" }, { "docid": "18625604", "title": "", "text": "new methodology only changes cash deposit rates which are no longer in effect for all respondents. Id. at 4-5. Defendant argues that the ITA’s new VAT methodology is responsive to this Court’s remand order. Specifically, the defendant argues that this new methodology adds the full amount of VAT to FMV ensures that the tax adjustment made to USP is not greater than the amount of VAT added to FMV and does not make a COS adjustment to the amount of VAT added to FMV Remand Results at 2-5; Defendant’s Rebuttal to Federal-Mogul Corporation’s Comments Concerning Defendant’s Final Results of Redetermination Pursuant to Court Order (“Defendant’s Comments”) at 2. For a detailed discussion of Federal-Mogul and defendant’s arguments on this issue, see this Court’s decision in Federal-Mogul Corp. v. United States, 17 CIT 1093, 1095-98, 834 F. Supp. 1391, 1394-96 (1993). Defendant requests this Court to reconsider its recent decisions in Federal-Mogul Corp. v. United States, 17 CIT 1093, 834 F. Supp. 1391, Torrington Co. v. United States, 17 CIT 1113, 834 F. Supp 1384 (1993), which found that the ITA’s new VAT methodology is not in accordance with law. Defendant-intervenors SKF and NTN Bearing Corporation of America and NTN Kugellagerfabrik (Deutschland) GmbH (“NTN”) essentially support defendant’s arguments on this issue. Comments of SKF Regarding Final Remand Results (“SKF’s Comments”) at 1-3; NTN’s Comments on the Remand Determination of the United States Depart- merit of Commerce, International Trade Administration (“NTN’s Comments”) at 2-4. SKF emphasizes that unless the VAT rate is applied to comparable FMV and USP tax bases, application of the VAT rate to USP may result in the creation of dumping margins, a result which SKF contends cannot be allowed pursuant to the Court of Appeals for the Federal Circuit’s decision in Zenith, 988 F.2d at 1582. Response of SKF to Comments of Federal-Mogul Regarding Final Results of Redetermination (“SKF’s Response”) at 2-7. This Court remanded this issue for the ITA “to examine the administrative record to determine the exact monetary amount of VAT paid on each sale in the home market and make sure that the amount added" }, { "docid": "18667967", "title": "", "text": "Supp. 856 (1993), and finds that in the absence of explicit statutory guidance, the ITA’s interpretation of the statue it is charged with administering should be given deference. Melamine Chems., Inc. v. United States, 732 F.2d 924, 928 (Fed. Cir. 1984). Therefore, this Court affirms the ITA’s adjustment to FMV for U.S. sales commissions paid on ESP sales. 6. Antidumping Duty Legal Expenses: Federal-Mogul argues that 19 U.S.C. § 1677a(e)(2) (1988) requires the ITA to deduct respondent’s antidumping duty related legal fees from ESP as “expenses generally incurred by or for the account of the exporter in the United States in selling identical or substantially identical merchandise.” Federal-Mogul also argues that this court’s holdings in Daewoo Elees. Co. v. United States, 13 CIT 253, 269-70, 712 F. Supp. 931, 947 (1989), and Zenith Elecs. Corp. v. United States, 15 CIT 394, 408, 770 F. Supp. 648, 651 (1991), were wrongly decided. Federal-Mogul’s Brief at 54-58. This Court adheres to its decision on this issue in Federal-Mogul, 17 CIT at 107, 813 F. Supp. 856 (1993), and finds that the ITA is not required to make an adjustment to ESP for antidumping duty related legal expenses. 7. Deduction of Antidumping Duties from USP: Federal-Mogul argues that 19 U.S.C. § 1677a(d)(2)(A) (1988) requires the ITA to deduct cash deposits of estimated antidumping duties made by respondents during the period of review. 19 U.S.C. § 1677a(d)(2)(A) states that the ITA must deduct from USP the amount, if any, included in such price, attributable to any additional costs, charges, and expenses, and United States import duties, incident to bringing the merchandise from the place of shipment in the country of exportation to the place of delivery in the United States * * *. (Emphasis added); Federal-Mogul’s Brief at 58-61. Defendant argues that 19 U.S.C. § 1677a(d)(2)(A) requires the deduction of normal import duties and that cash deposits of estimated an-tidumping duties are not normal import duties, that deposits of estimated antidumping duties are not selling expenses that should be deducted and that not deducting estimated antidumping duties from USP has been the ITA’s consistent" }, { "docid": "18671857", "title": "", "text": "USP i.e., the price to the first unrelated purchaser. Id. at 19-20. The court went on to affirm the ITA’s methodology of determining where in the stream of commerce the Korean authorities applied the ad valorem tax rate in the home market and applying the same tax rate to USP calculated at the same point in the chain of commerce and adding this amount to USP Id. at 18-22. Therefore, since as a matter of law the ITA has incorrectly adjusted USP for Thailand’s indirect tax rate, and since there is no just reason for delay in the entry of final judgment on this issue, this Court is entering final judgment on this issue ordering the ITA to apply Thailand’s indirect tax rate to USP calculated at the same point in the stream of commerce where Thailand’s tax authorities apply indirect taxes on home market sales and add the resulting amount to USE This case is dismissed. Although Torrington challenges the ITA’s treatment of value added taxes, its arguments also apply to the other types of indirect taxes present in this case. 19 U.S.C. § 1617a(d)(1)(C) states: (d) Adjustments to purchase price and exporter’s sales price The purchase price and the exporter’s sales price shall be adjusted by being— (1) increased by— ******* (C) the amount of any taxes imposed in the country of exportation directly upon the exported merchandise, or components thereof, which have been rebated, or which have not been collected, by reason of the exportation of the merchandise to the United States, but only to the extent that such taxes are added to or included in the price of such or similar merchandise when sold in the country of exportation; * * *. The multiplier effect can be seen in the following example taken from Zenith Elecs. Corp. v. United States, 10 CIT 268, 273 n.9, 633 F. Supp. 1382, 1386 n.9 (1986), appeal dismissed, 875 F.2d 291 (Fed. Cir. 1989): Suppose the pre-tax home market price for a certain model of Japanese television is equal to $100, while the purchase price for the same model when" }, { "docid": "13957367", "title": "", "text": "incidence of the HM tax, because the statute requires no' such limitation____ Because all HM sales were reported net of VAT, we added the same VAT amount to FMV as that calculated for USP. This is equivalent to calculating the actual HM tax, and then performing a circumstance-of-sale adjustment to FMV to eliminate the absolute difference between the amount of tax in each market. • Issues Appendix, 56 Fed.Reg. at 31,729. NSK Ltd. and NSK Corporation (“NSK”) argues that the statute does not require that FMV contain home market excise taxes and that in situations, as here, where FMV is reported net tax, the provisions of 19 U.S.C. § 1677a(d)(l)(C) do not apply and no adjustment need be made to USP. NSK’s Response in Support of Koyo’s Motion for Judgment on the Agency Record (“NSK’s Response’’) at 11-18. This Court does not agree. The plain language of 19 U.S.C. § 1677a(d)(l)(C) requires that USP be increased by the amount of any indirect tax imposed on sales of the subject merchandise in the home market, regardless of whether FMV is reported net tax or not. Zenith Elees. Corp. v. United States (“Zenith I’), 10 CIT 268, 275-82, 633 F.Supp. 1382, 1388-94 (1986), appeal dismissed, 875 F.2d 291 (Fed.Cir.1989). A. Tax Incidence Federal-Mogul argues that the ITA is required to measure the amount of the VAT which the manufacturer in the home market passes on to the consumer. Federal-Mogul’s' Opposition at 41-46. Federal-Mogul argues that the phrase “but only to the extent that such taxes are added to or included in the price of such or similar merchandise when sold in the country of exportation” in 19 U.S.C. § 1677a(d)(l)(C) requires the ITA to make these measurements. Id. Federal-Mogul primarily relies on this court’s decision ,in Zenith I, 10 CIT at 282-91, 633 F.Supp, at 1394-401. Federal-Mogul also relies on portions of the legislative history of the Trade Act of 1974, which added this provision. See Pub.L. No. 93-618, Title III, Ch. 2, Sec. 321, 88 Stat. 1978, 2045 (1975); H.R.Rep. No. 571, 93d Cong., 1st Sess. 69 (1973). The court in" }, { "docid": "18850396", "title": "", "text": "yet another allegedly illegal review, and possibly yet another after that if one is requested. The Indian exporters’ complaint hopes to shatter this cycle. The defendants are directed to answer the complaint within 30 days. II. Motion To Enjoin Pending Reviews: Finding that the Court has jurisdiction under 28 U.S.C. § 1581(i), the Court turns to the requested injunctive relief. In order to prevail on their motion for a preliminary injunction, the Indian exporters must show (1) threat of immediate and irreparable injury; (2) likelihood of success on the merits; (3) that the public interest would be better served by issuing rather than by denying the injunction; and (4) the balance of hardships on the parties favors issuing the injunction. See, e.g., Matsushita Elec. Indus. Co. v. United States, 823 F.2d 505, 509 (1987); Zenith Radio Corp. v. United States, 1 Fed. Cir. (T) 74, 76, 710 F.2d 806, 809 (1983); Komatsu Forklift Mfg. Co. v. United States, 13 CIT 578, Slip Op. 89-97, at 8 (July 11, 1989). The Court finds that there has been no showing of an \"irreparable injury.” The expenses and effort involved in the defense of litigation do not constitute \"irreparable injury” that may justify a preliminary injunction. Federal Trade Comm’n v. Standard Oil Co. of Ca., 449 U.S. 232, 244 (1980); Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974); UST, Inc. v. United States, 831 F.2d 1028, 1032 (Fed. Cir. 1987); Matsushita Elec. Indus. Co. v. United States, 823 F.2d 505, 509 (Fed. Cir. 1987). Even unrecoverable litigation costs do not constitute irreparable injury, nor the expense and disruption associated with delay in administrative proceedings. Nissan Motor Corp. v. United States, 10 CIT 820, 824, 651 F. Supp. 1450, 1454 (1986). Increased business expenses alone also do not justify an injunction. S.J. Stile Associates, Ltd. v. Snyder, 68 CCPA 27, 30-31, C.A.D. 1261, 646 F.2d 522, 525-26 (1981); Hyundai Pipe Co. v. United States Int’l Trade Comm’n, 10 CIT 695, 699, 650 F. Supp. 174, 176 (1986); American Inst. for Imported Steel, Inc. v. United States, 8 CIT 314, 318, 600" } ]

[ { "docid": "11069970", "title": "", "text": "with little warning.” Fletcher v. Clinton, 196 F.3d 41, 50 (1st Cir.1999). Indeed, “more officers are killed or injured on domestic violence calls than on any other type of call.” Hearings before Senate Judiciary Committee, 1994 WL 530624 (F.D.C.H.)(Sept. 13, 1994)(statement on behalf of National Task Force on Domestic Violence). As a result of these factors, other circuits have recognized the need for law enforcement officers to enter a home with out a warrant when it appears that the occupant may injure himself or others. Fletcher, 196 F.3d at 49; Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir.1998). As the Second Circuit observed in Tierney: “Courts have recognized the combustible nature of domestic disputes, and have accorded great latitude to an officer’s belief that warrantless entry was justified by exigent circumstances when the officer had substantial reason to believe that one of the parties to the dispute was in danger.” 133 F.3d at 197. Here, the officer responded to an interrupted 911 call concerning domestic violence at a residence known to the officer as the source of prior episodes of domestic violence. On arrival, he observed a crying woman in the front yard and heard continued angry yelling from the interior of the house. He reasonably believed there was an emergency at hand and an immediate need for his assistance for the protection of life or property. He entered the house and proceeded to the bedroom where the defendant was located. In moving the defendant out of the bedroom, the officer saw the firearms. His observation was not motivated by an intent to arrest and seize evidence, but rather was incidental to the officer’s management of the situation. The living room where the weapons were discovered was the part of the premises in which the emergency situation had arisen and was logically used by the officer as a place to defuse the situation. As such, there was a sufficient nexus between it and the emergency for the doctrine to apply. Cf. United States v. Deemer, 354 F.3d 1130, 1132-33 (9th Cir.2004) (holding that a search of a motel room" } ]

[ { "docid": "9285307", "title": "", "text": "722 F.3d 725, 734 (5th Cir. 2013) (quoting Graham , 490 U.S. at 396, 109 S.Ct. 1865 ). The court \"must consider all of the circumstances leading up to [the moment deadly force is used], because they inform the reasonableness of [the officer's] decisionmaking.\" Mendez v. Poitevent , 823 F.3d 326, 333 (5th Cir. 2016). Contrary to Romero's assertions, the salient factual circumstances are uncontroverted and supported by the dash cam footage. First, Clark encountered Villalpando's car while responding to the scene of a suspected burglary-a felony offense. Villalpando did not stop when Clark activated his emergency lights and used his siren. Instead, Villalpando fled at a high rate of speed, ran a stop sign, and accelerated onto the highway. Once on the highway, Villalpando recklessly wove back and forth across four lanes of traffic and drove on the shoulder. Given his dangerous behavior, Clark reasonably suspected that the occupant or occupants of Villalpando's car \"were involved in burglarizing or attempting to burglarize\" the commercial building. When Villalpando finally stopped the vehicle on the shoulder of a highway exit, Clark issued several commands for him to make his hands visible, which Villalpando ignored at least once, reaching his right hand back into his driver's side window. Despite several more clear commands to remain in his vehicle and keep his hands out of the window, Villalpando opened his driver's side door and stepped out. Clearly worried for his own safety, Clark told dispatch on more than one occasion to \"step it up\" and that Villalpando \"kept trying to reach for somethin'.\" Villalpando twice told Clark: \"kill me.\" All of this unfolded as multiple cars were passing in the traffic lines immediately to the left of the shoulder. Over the next several minutes, Clark instructed Villalpando over and over again to stay where he was and keep his hands up. Villalpando deliberately ignored Clark's commands, walking towards Clark on the narrow shoulder, dropping his arms once to his waist, and fiddling with his hat. Clark testified that he \"was concerned [Villalpando] could have a weapon on his person, and he may have" }, { "docid": "4020617", "title": "", "text": "of his car so that they could frisk him. No matter. For it justified their taking the less intrusive step of keeping him from driving away while they checked out Johnson, since if Johnson was a criminal, Burton might well be one too. See United States v. Clark, 337 F.3d 1282, 1283-84, 1288 (11th Cir.2003). That was a minimal stop, requiring only minimal suspicion; and that the police had. AFFIRMED. ROVNER, Circuit Judge, concurring in the judgment. After seeing two cars swerve to avoid striking Johnson as he leaned through the window of Burton’s car, police officers had ample cause to effectuate at least a limited seizure of Johnson — if for no other reason than to get him out of the way of moving traffic. Having legitimate reason to seize Johnson, I believe the officers were also justified in temporarily detaining Burton and his passenger by surrounding his car. The officers were approaching three strangers on the street in the immediate vicinity of a house reputed to be the site of narcotics trafficking. They had reason to be concerned for their own safety as well as that of passing motorists and pedestrians. Stationing themselves on three sides of Burton’s automobile — against which Johnson was leaning — was a reasonable means of asserting control over the scene until such time as Johnson was cleared from the roadway and the officers were satisfied that neither he nor Burton nor his passenger posed a danger. In the moment or two that it legitimately took the officers to do this, it is possible that they acquired the information that independently justified the (further) detention of Burton — he was driving without a license. As the record stands, we do not know whether the questioning that produced that disclosure prolonged the initial seizure, nor do we know whether during that questioning the officers removed one or more of the bicycles that were blocking the path of Burton’s car. Gaps in the record such as these are readily explainable: Burton did not make below the particular seizure argument that he is making on appeal," }, { "docid": "22285592", "title": "", "text": "” relevant to the totality of these circumstances. Bryan, 630 F.3d at 826 (quoting Franklin, 31 F.3d at 876). While Jayzel herself did not pose any threat to the officers’ safety, we must also consider the danger that the overall situation posed to the officers’ safety and what effect that has on the reasonableness of the officers’ actions. As we have recounted, the officers came to the Mattoses’ residence in response to a 911 domestic dispute call. When they arrived they encountered Troy, who was sitting by himself outside the residence, hostile, seemingly intoxicated, six feet three inches tall and approximately 200 pounds. We have observed that “[t]he volatility of situations involving domestic violence” makes them particularly dangerous. United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir.2005). “When officers respond to a domestic abuse call, they understand that violence may be lurking and explode with little warning. Indeed,more officers are killed or injured on domestic violence calls than on any other type of call.” Id. (internal quotation marks and citation omitted). We have also “recognized that the exigencies of domestic abuse cases present dangers that, in an appropriate case, may override considerations of privacy.” United States v. Black, 482 F.3d 1035, 1040 (9th Cir.2007) (internal quotation marks omitted). We take very seriously the danger that domestic disputes pose to law enforcement officers, and we have no trouble concluding that a reasonable officer arriving at the Mattoses’ residence reasonably could be concerned about his or her safety. In light of such concerns, we have recognized that “the exigencies of domestic abuse cases present dangers that ... may override considerations of privacy” where the alleged Fourth Amendment violation was a warrantless entry into a residence for the purpose of intervening in a domestic dispute, protecting the potential victim, and gaining control over a volatile situation that could endanger the officers. Id.; see Martinez, 406 F.3d at 1165; United States v. Brooks, 367 F.3d 1128, 1133-34 (9th Cir.2004). Here, though, the alleged Fourth Amendment violation is the excessive use of force against the potential nonthreatening victim of the domestic dispute whom the" }, { "docid": "22851451", "title": "", "text": "to the home of Clark’s friend near the intersection of Nine Mile and Gratiot Roads, and intended to reclaim one of Clark’s old bicycles, which the friend had borrowed. Weaver asserts that he and Clark were peddling at a normal speed through a public parking lot when they were pulled over by the defendants. The officers claim to have first observed two bicycle riders proceeding slowly through a residential street “from house to house ... onto sidewalks ... up driveway approaches ... [and] looking into yards.” The officers claim to have found the behavior suggestive of either criminal activity or that the riders were lost. The officers claim that they drove up alongside the riders, rolled down the window, and engaged in conversation. The officers asked Weaver and Clark what they were doing, and the plaintiffs stated that they were en route to a friend’s house to pick up Clark’s other bike. According to the defendants, Weaver provided his name, told the officers he was looking for a friend’s home, and the contact was terminated. Weaver and Clark then continued on their way, picked up the bike, and headed back to Detroit, pulling the second bike in tow. Moments later, the officers received a citizen’s call reporting “two suspicious African-American males riding bicycles and pulling a third bike.” Responding to the call, the officers stopped Weaver and Clark a second time. This time, both of the officers exited the car and made Weaver and Clark put their hands on the car’s hood while patting them down. The officers then ordered Weaver and Clark to sit on the curb, flipped over the bikes to read the serial numbers, and explained that a lot of people were coming across Eight Mile Road to steal bikes. The officers radioed the serial numbers- into the LIEN system, a system wherein bike serial numbers are recorded and reports of stolen bikes are kept. The officers were told that nobody had reported the bikes stolen, and the boys were released. 1.' § 1983 Racial Discrimination Claim Plaintiff Weaver asserts that the investigation by defendant Officers Lulko" }, { "docid": "23212034", "title": "", "text": "situations where the arrestee poses a threat to law enforcement officers or others, uses force against officers, physically resists arrest, or attempts to flee, in which cases pepper spray is a permissible way to “disable a suspect without causing permanent physical injury.” Vinyard, 311 F.3d at 1348 (quotation marks omitted). “Indeed, pepper spray is a very reasonable alternative to escalating a physical struggle with an arrestee.” Id. For example, in Garrett v. Athens-Clarke County, 378 F.3d 1274, 1280-81 (11th Cir.2004), we held that use of pepper spray was not excessive force where the arrestee led police on a high-speed vehicle chase, physically resisted arrest, attempted to flee, attempted to harm law enforcement officers, and attempted to take an officer’s pistol. Id. at 1276-77. In McCormick v. City of Fort Lauderdale, 333 F.3d 1234 (11th Cir.2003), we determined that the use of pepper spray on a suspected violent felon was a reasonable response to the scene confronting the officer — a victim on the floor with a bleeding head wound and her likely assailant standing near her and armed with a walking stick. Id. at 1244-45. “Given that pepper spray ordinarily causes only temporary discomfort, it may be reasonably employed against potentially violent suspects, especially those suspects who have already assaulted another person and remain armed.” Id. at 1245. Given the facts in the light most favorable to Brown, the district court improperly granted summary judgment to Defendant Norris on Brown’s excessive force claim. Under Brown’s version, Norris’s actions in effecting the arrest constitute excessive force. Each Graham factor supports Brown. First, Brown was not arrested for a serious crime. Second, Brown did not pose a threat to anyone’s safety. Third, under Brown’s account of the facts, she was cooperative, was not resisting arrest, and was not attempting to flee. She complied with Defendant Norris’s requests and attempted to get out of the vehicle but was delayed by the door locks, which she clearly communicated to Norris. Brown then had actually opened the door and was getting out when Norris pushed her back in the car and sprayed her. Norris’s subjective" }, { "docid": "9704341", "title": "", "text": "drinking and requested that an ambulance be dispatched to their residence. Paramedics William Hagler and William Akers responded to the call and arrived at the Sheik-Abdi’s home within minutes. Zeinab Sheik-Abdi answered the door, admitted the paramedics to the house, and directed them to the den where they encountered Abdi Sheik-Abdi, lying on the floor glassy-eyed. Hagler and Akers identified themselves and attempted to take Sheik-Abdi’s vital signs, but were unable to do so as Sheik-Abdi stood up, waved his arms, and ordered the paramedics out of his house. Akers and Hagler then retreated to the kitchen where they discussed the situation. Perceiving Sheik-Abdi to be “belligerent and uncooperative,” and fearing the development of an “unpredictable situation,” the paramedics decided to call the police department for assistance. Hagler telephoned the police from the ambulance, and Officers Martin McClellan and Joseph Wazny soon arrived in separate squad cars to assist the paramedics with what they perceived to be a “domestic situation.” Hagler allowed the officers into the house and advised them that a man inside had been drinking and was possibly combative. When the police ventured into the kitchen area, Sheik-Abdi was on his feet, with his wife holding one of his arms and Akers holding the other. Upon seeing the police officers, Sheik-Abdi became verbally abusive. At that time Akers informed the police that he had observed Sheik-Abdi strike Zeinab in the chest while Hagler was in the ambulance contacting the police. According to Akers, this striking occurred when Zeinab had taken hold of Sheik-Abdi’s arm and he shoved her with a forearm in attempting to get free. Upon hearing Akers’ report, the officers declined to further question either Akers or Zeinab Sheik-Abdi with respect to the alleged striking. Instead, after several attempts to persuade Sheik-Abdi to go to the hospital, McClellan offered him the choice of going to the hospital or to jail. Sheik-Abdi continued his verbal abuse, and, according to McClellan, cocked his arm when his wife attempted to cover him with a robe. At this point, McClellan placed Sheik-Abdi in handcuffs. Wazny then escorted Sheik-Abdi to McClellan’s" }, { "docid": "6981542", "title": "", "text": "The next meeting was in Philadelphia on April 4, 1962. This time only the two Agents came to Philadelphia. They went to Doctor Clarke’s office and he asked them to go to the office of Doctor Johnson and wait and shortly afterwards Doctor Clarke arrived. He was carrying a paper bag in which he had cocaine, dol-ophine tablets, and a woman’s diaphragm kit container. This transfer involved $1500.00 given to Doctor Clax*ke. When Doctor Johnson walked in, Doctor Clarke stated he had 2000 more dolophine tablets if they were interested. Doctor Johnson stated he had not received his order forms for cocaine, that he was waiting for them, and if they waited, they still might get the forms and he could pick up the cocaine. Doctor Johnson then demonstrated means of cleaning bottles for the transportation of cocaine and dolophine tablets and discussed future purchases of narcotics. Doctor Clarke then reappeared with two more large bottles of dolophine hydrochloride and Ripa stated he didn’t have enough money; that he had only enough money for one and Clarke then poured the contents of one bottle into the cardboard container which he had previously given to Cockerille. Ripa pulled out $500.00 which Clarke told him to pay to Johnson, which was done. The next meeting was April 11 in Philadelphia. The two Agents proceeded to the office of Doctor Clarke, were joined by Doctor Johnson, and a discussion was had about future deliveries of narcotics. At that time, Ripa negotiated for two ounces of cocaine and 4000 dolo-phine tablets. Doctor Clarke asked the two Agents to go into the back room again, where he removed from the original cocaine container’s eight brown bottles, and poured the contents into a diaphragm container, and the dolophine tablets into a cardboard box. Ripa counted out $2500.00 and gave it to Doctor Clarke, explaining he was $500.00 short but that he had more money out in the car and would send Agent Cockerille out to get it. Doctor Clarke then took $1500.00 from the $2500.00 and gave it to Doctor Johnson, saying they were now all" }, { "docid": "23362510", "title": "", "text": "in their squad car, they began to hear loud music. Shortly after the officers arrived on the premises at 1:39 a.m., somewhere between four and eight pajama-clad neighbors emerged from their homes to complain about the noise. Using the end of his flashlight, Officer Clark banged repeatedly on the front door of Defendant’s home, but received no response. While Officer Tucker returned to the squad ear in an attempt to obtain the telephone number of the residence, Officer Clark walked around the outside of the two-story residence, all the while tapping to no avail on its first-floor windows. As he walked outside the house, he observed two stereo speakers in the first-floor living room and another pair of speakers in an upstairs room, with speaker wire running between the two floors on the outside of the home. Upon reaching the back door of Defendant’s home, Officer Clark discovered that it was open, with only an unlocked screen door preventing access into the house. He called to Officer Tucker, who abandoned his effort to obtain a telephone number and joined Officer Clark at the back door. The officers knocked and hollered to announce their presence, but again received no answer. They then opened the unlocked screen door, passed through a porch and through the open back door, and emerged into a kitchen. All along the way, and each time the officers entered a room, Officer Clark continued to announce that he was with the Canton Police, and to ask whether anyone was home. At the suppression hearing, Officer Clark testified that the music inside the house was so loud that the officers had to raise their voices in order to communicate with each other. Defendant testified, however, that only the upstairs stereo speakers, and not the two downstairs speakers, were turned on at the time the officers entered his home. A light was on in the kitchen when the officers entered, but the remaining first-floor rooms were dark. The officers then observed another light emerging from an open doorway. Proceeding through this doorway toward the light, they travelled down some stairs" }, { "docid": "23025174", "title": "", "text": "wallet containing $57.00, $55.00 of which was marked money belonging to the government. The officers then ran out the front door and were pursued by three men who went back inside as a car occupied by officers approached. Agent William M. Clark testified that he was in charge of the investigation and that he and Agent Outright proceeded to the tavern that night followed by the car occupied by Moriarty and Gentile. Clark drove past the tavern about a block and parked, keeping it under surveillance. He saw Moriarty and Gentile go into the tavern and saw three other men go inside about five minutes later. At about 11:00 p. m. he saw Agents McNamara and Moriarty and informer Gentile run out of the tavern followed by three men. Clark started his car and as he drove towards the tavern the three man went back inside. Clark and Agent Hoerner went to the door, identified themselves and tried to gain admittance, but were unable to do so. In a few minutes several police officers arrived and Hoerner broke a small pane of glass in the front door and shouted inside. Then someone replied, “Don’t shoot, I’ll open the door.” The door was then opened by Roy Roberts and he and the three other defendants were placed under arrest. After they were removed from the premises, it was searched. Agent McNamara's pistol and wallet were found under a rollaway bed in a small storage area at the back of the tavern which was connected to the bar by an open doorway. A Derringer and a .38 revolver were found back of the bar, and Moriarty’s weapon was found in an empty beer case in the storage area. Defendants urge eighteen assignments of error, all of which we have carefully considered but have found to be without merit. Defendants admit that an assault on the federal officers took place, but contend that they did not know at the time that they were federal officers and that this is the crux of the case. Both officers testified that they did inform the defendants" }, { "docid": "15374589", "title": "", "text": "to the counter. As Clark examined the oil to locate its price, McAfee pulled out a knife and asked her if she had ever been robbed. McAfee then jumped up onto the counter, asked Clark to open the cash drawer, and ordered her to go to the cooler. As McAfee left the store, Clark saw a Ford Bronco exit the driveway. She then called the police. Several members of the Santa Fe police department arrived at the convenience store. Clark gave the officers a description of the robber and the vehicle. She testified that, when giving the police a description of the robber, she was indecisive because she was “traumatized and in shock,” stating “I thought he had dark hair or he had a mustache or had a goatee. I wasn’t real sure.” Captain G. Keith Meenen, one of the responding officers, testified at trial that Clark described the robber as a white male, approximately six feet tall, blond to brown hair, with a mustache. Clark also described the vehicle as a two-tone Ford Bronco 2 but could not recall the colors. Sergeant O’Briant, also a responding officer, attested that he took prints off the counter and the door but they were not readable. Almost six months later, McAfee became a suspect when a patrol officer pulled him over in a two-tone Ford Bronco 2 for a traffic violation. The officer noted the similarities between the description of the robber and the vehicle to McAfee and his car. A short time later, Clark identified McAfee out of a six-person photographic lineup. She also identified him in the courtroom at trial. The state also submitted a videotape from the convenience store security camera into evidence. McAfee’s counsel presented two witnesses at trial, McAfee and his friend Blaine Carmichael. Carmichael asserted that he was McAfee’s neighbor in Houston, Texas. He recalled how, on the night of June 7, 2002, he celebrated his birthday with his friends. Among those friends was McAfee. Carmichael attested that McAfee joined the party at around midnight at Duster’s Saloon, and drank with him until the bar closed" }, { "docid": "6135907", "title": "", "text": "the truck parked on the side of the road but decided not to seize it at that time because there were people nearby. The next day Clarke located the truck parked in the driveway leading to Coleman’s home. At 10:00 p. m. he returned to the police station to inform the police that he had located the truck and was going to repossess it that night. Clarke also noted that after repossessing the truck, he would stop off at the police station to deposit any personal effects of Coleman’s that he might find in the truck. Two reasons motivated Clarke to deliver any personal belonging to the police station. First, his authority was limited to repossessing the truck; his authorization did not extend to the seizure of personal property inside the truck. Second, Clarke planned to return the truck to Detroit that evening — a drive of some 200 miles from Elk Rapids. Depositing any personal effects at the police station would spare Coleman the inconvenience of traveling to Detroit in order to retrieve them. Clarke then asked the police whether they would park nearby for his protection while he repossessed the truck. The police agreed to do so. After leaving the police station, Clarke drove to his motel to pick up his companions and together they went to Coleman’s home. The police followed in their patrol car and parked down the street and around the corner from the Coleman residence. The police remained in their car while Clarke entered the truck, started the engine, and drove away without incident. When he entered the unlocked truck, Clarke noticed open beer cans, a quantity of what appeared to be marijuana on the seat, and the butt end of a rifle protruding from behind the seat. After traveling about one block, Clarke contacted the police by using the truck’s C.B. radio to make certain that no one had followed him. He asked the police to rendezvous with him at the police station. Clarke arrived at the police station several minutes ahead of the officers. When the officers arrived, Clarke told them that" }, { "docid": "13002484", "title": "", "text": "not ’hear Corporal Bratton ask this question).) That this misdemeanor involved domestic violence does not support a conclusion that the Officer Defendants’ use of force was reasonable because at the time they encountered Parminder the reported domestic diápute was not ongoing and the alleged victim was not in immediate danger. While the Ninth Circuit has emphasized the increased danger officers- face when responding to domestic disturbances, Ninth Circuit precedent has distinguished cases where (i) the domestic dispute terminated before officers arrived and (ii) the alleged abuser is no longer in the presence of or close proximity to the victim. This precedent can be succinctly summarized as follows: Domestic violence situations are “partic-, ularly dangerous” because “more officers are killed or injured on domestic violence calls than on any other type of call.” Mottos, 661 F.3d at 450. At the same time, we explained in Mattos that the legitimate escalation of an officer’s “concern[] about his or her safety” is less salient “when the domestic, dispute is, seemingly over by the time the officers begin their investigation.” Id. Years before that we had held — in another en banc decision — that a husband’s criminal abuse of his spouse “provide[d] little, if any, basis for the officers’ use of physical force\" because when law enforcement “arrived [the husband] was standing on his porch alone and separated from his-wife.” Smith, 394 F.3d at 703. George v. Morris, 736 F.3d 829, 839 (9th Cir. 2013). This is such a'case; Indeed, in the instant case Parminder was further removed from the Family Home than the husbands in Smith and George. See id. at 832-33,\" 839 (husband shot while on his back patio);8⅛⅞⅛, 394 F.3d at 693-94, 702-03 (husband tackled, pepper sprayed, and attacked by police dog on his front porch). The Officer Defendants’ characterization of the crime at issue in their briefing results from a refusal to review the record through the prism of the traditional summary judgment standard, The Officer . Defendants suggest that the crimes at issue were “[a]ssault with a deadly weapon or by force likely to produce great bodily injury!;.]”" }, { "docid": "22285591", "title": "", "text": "to evade arrest by flight. Deorle, 272 F.3d at 1280. According to Jayzel’s rendition of the facts, the most that can be said is that she minimally resisted Troy’s arrest. She was standing between Aikala and Troy before Aikala moved in to arrest Troy, and her physical contact with Aikala was defensive, intended to protect her own body from contact with Aikala. That being said, when Aikala stated that Troy was under arrest, Jayzel did not immediately move out of the way to facilitate the arrest. For the purposes of this Graham factor, however, we draw a distinction between a failure to facilitate an arrest and active resistance to arrest. Moreover, the crux of this Graham factor is compliance with the officers’ requests, or refusal to comply. Here, Jayzel was attempting to comply with Agarano’s request to speak with her outside when she got physically caught in the middle between Aikala and Troy. Accordingly, this factor weighs in Jayzel’s favor. Finally, it is important in this case that we consider the additional “ ‘specific factors’ ” relevant to the totality of these circumstances. Bryan, 630 F.3d at 826 (quoting Franklin, 31 F.3d at 876). While Jayzel herself did not pose any threat to the officers’ safety, we must also consider the danger that the overall situation posed to the officers’ safety and what effect that has on the reasonableness of the officers’ actions. As we have recounted, the officers came to the Mattoses’ residence in response to a 911 domestic dispute call. When they arrived they encountered Troy, who was sitting by himself outside the residence, hostile, seemingly intoxicated, six feet three inches tall and approximately 200 pounds. We have observed that “[t]he volatility of situations involving domestic violence” makes them particularly dangerous. United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir.2005). “When officers respond to a domestic abuse call, they understand that violence may be lurking and explode with little warning. Indeed,more officers are killed or injured on domestic violence calls than on any other type of call.” Id. (internal quotation marks and citation omitted). We have also" }, { "docid": "13002483", "title": "", "text": "630 F.3d at 828-29). As this Court recently explained, under California law, the distinction between felony and misdemeanor domestic violence is whether the victim has suffered a physical injury. See Reed v. City of Modesto, 122 F.Supp.3d 967, 975 (E.D. Cal. 2015). The Court is mindful that the Officer Defendants were not told that the reported attack on-Parminder’s mother had not occurred and that reasonableness is “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct, 1865. However, like Reed, there is no evidence in the record that the Officer Defendants observed any injury on any of the persons in the home. To the contrary, the Officer Defendants admittedly left the Family Home vñthout ascertaining1 whether anyone there had been injured. (ECF No. 177-3 at 19;3 — 9 (Corporal Bratton' testifying that he left without learning whether anyone had been hurt); EOF No. 177-3 at 146:19-25 (Officer Lockietestifying that he had not asked whether anyone was hurt and did not ’hear Corporal Bratton ask this question).) That this misdemeanor involved domestic violence does not support a conclusion that the Officer Defendants’ use of force was reasonable because at the time they encountered Parminder the reported domestic diápute was not ongoing and the alleged victim was not in immediate danger. While the Ninth Circuit has emphasized the increased danger officers- face when responding to domestic disturbances, Ninth Circuit precedent has distinguished cases where (i) the domestic dispute terminated before officers arrived and (ii) the alleged abuser is no longer in the presence of or close proximity to the victim. This precedent can be succinctly summarized as follows: Domestic violence situations are “partic-, ularly dangerous” because “more officers are killed or injured on domestic violence calls than on any other type of call.” Mottos, 661 F.3d at 450. At the same time, we explained in Mattos that the legitimate escalation of an officer’s “concern[] about his or her safety” is less salient “when the domestic, dispute is, seemingly over by the time the officers begin their" }, { "docid": "7074136", "title": "", "text": "him, in Niedfeldt’s car, to Topeka. The P2P was in Niedfeldt’s car. David and Niedfeldt met Lane and Clark in Topeka, where the deal was completed. When David and Niedfeldt were arrested on leaving the room, Niedfeldt was carrying $34,000 in cash. He attempted to escape but was tackled by a KBI agent. Following the arrests, a search of Robert’s home revealed evidence of a drug laboratory. We find that the evidence set forth above was sufficient to support the convictions of all appellants for the conspiracy charged in Count One. Robert Johnson further argues that “there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy,” citing Sears v. United States, 343 F.2d 139, 142 (5th Cir.1965). Robert’s argument is based on the assumption that he could have been found to have “conspired” only with the government informant, Rayburn Clark. This argument does not justify reversal of Robert Johnson’s conviction. First, it was apparently not raised below. Second, it ignores the likelihood that the jury found that Robert Johnson had conspired with his brother David, based on the evidence that the two had been setting up a methamphetamine laboratory and the evidence of David Johnson’s phone calls to Robert from jail to arrange the aborted meeting with Clark and Lane. C. Exclusion of impeachment testimony David Johnson argues that the trial court erred in prohibiting a federal public defender attorney from testifying to impeach the credibility of KBI Agent Lynn Currier Myers IV. David Johnson testified at trial that Rayburn Clark, the KBI informant, had coerced him into selling the P2P to Lane. Government witnesses, however, testified that after David’s arrest, he never mentioned that he had been coerced. One such witness was Agent Myers. On cross-examination, David’s attorney attempted to impeach Myers’s credibility based on allegations that Myers, as a highway patrol officer, had admitted to the media that he engaged in routine pretextual stops and that his actions caused the Kansas City United States Attorney to dismiss a case. Myers denied the allegations. In a further attempt to impeach Myers, David’s" }, { "docid": "7362295", "title": "", "text": "MEMORANDUM OPINION AND ORDER SHADUR, District Judge. On July 2, 1985 Vickie Shorters (“Shorters”) and Delores Clark (“Clark”) sued the City of Chicago (“City”) and Chicago police officer George Weir (“Weir”) under 42 U.S.C. § 1983 (“Section 1983”), seeking damages for an alleged violation of plaintiffs’ civil rights in August 1982. Defend ants then moved under Fed.R.Civ.P. (“Rule”) 12(b)(6) to dismiss plaintiffs’ Complaint, in part on the grounds it is barred by the applicable statute of limitations. For the reasons stated in this memorandum opinion and order, the Complaint survives that motion. Facts In the early morning hours of August 5, 1982 plaintiffs, who were riding in an automobile owned by Clark, stopped to purchase hamburgers at a White Castle restaurant at 111th and State Streets in Chicago. Shorters entered the restaurant while Clark remained in the car. While waiting for Shorters to return, Clark was approached by a restaurant security guard who told her she was parked in a restricted area and would have to move her car. After some discussion Clark agreed to do so. As Clark was moving the car Weir arrived on the scene, ordered Clark to stop the car and asked to see her license. When Clark produced her license, Weir reached inside the car, took the license from her and also removed the keys from the ignition switch. Weir then opened the car door, removed Clark from the car and placed her in his squad car, in the meantime subjecting her to verbal abuse. Shortly thereafter Shorters emerged from the restaurant and approached Weir to ask about what had happened. Weir responded “Do you want to go to jail too?,” twisted Shorters’s arm behind her back and placed her under arrest. Clark was later charged with battery, while both Shorters and Clark were charged with disorderly conduct. After plaintiffs had appeared several times in the Circuit Court of Cook County all charges against them were dropped. Statute of Limitations Defendants’ motion to dismiss invokes the Supreme Court’s definitive ruling in Wilson v. Garcia, — U.S.-, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Wilson, 105" }, { "docid": "9285306", "title": "", "text": "occurs, when the officer reasonably believes that the suspect poses a threat of serious harm.\"). Recognizing that \"police officers are often forced to make split second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation,\" Graham , 490 U.S. at 396, 109 S.Ct. 1865, the Supreme Court has warned against \"second-guessing a police officer's assessment, made on the scene, of the danger presented by a particular situation,\" Ryburn v. Huff , 565 U.S. 469, 477, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012). Accordingly, reasonableness \"must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.\" Graham , 490 U.S. at 396, 109 S.Ct. 1865. In evaluating whether an officer acted reasonably, courts may consider \"the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.\" Hogan v. Cunningham , 722 F.3d 725, 734 (5th Cir. 2013) (quoting Graham , 490 U.S. at 396, 109 S.Ct. 1865 ). The court \"must consider all of the circumstances leading up to [the moment deadly force is used], because they inform the reasonableness of [the officer's] decisionmaking.\" Mendez v. Poitevent , 823 F.3d 326, 333 (5th Cir. 2016). Contrary to Romero's assertions, the salient factual circumstances are uncontroverted and supported by the dash cam footage. First, Clark encountered Villalpando's car while responding to the scene of a suspected burglary-a felony offense. Villalpando did not stop when Clark activated his emergency lights and used his siren. Instead, Villalpando fled at a high rate of speed, ran a stop sign, and accelerated onto the highway. Once on the highway, Villalpando recklessly wove back and forth across four lanes of traffic and drove on the shoulder. Given his dangerous behavior, Clark reasonably suspected that the occupant or occupants of Villalpando's car \"were involved in burglarizing or attempting to burglarize\" the commercial building. When Villalpando finally stopped the vehicle on the shoulder" }, { "docid": "6981541", "title": "", "text": "Broadway. Although the place was suggested by Flores, all transactions were conducted between Agents Ripa and Cockerille and Doctors Clarke and Johnson. The first transaction on this occasion was with Doctor Clarke and involved cocaine and dolophine tablets. Ripa complained of a shortage of a quarter-ounce of cocaine on the previous transaction. Cockerille and Doctor Clarke went to Clarke’s car and the narcotics were exchanged. Cockerille returned and told Ripa to pay him and Ripa paid $1250.00 to Doctor Clarke. Doctor Clarke asked Ripa whether he had any news concerning the proposed clinic which had been mentioned at the prior meeting. Ripa informed him that he was still in the process of discussing it with his people and that he would let him know. Doctor Johnson later came and as a result of the transactions, again conducted from the trunk of Doctor Johnson’s car, the narcotics were exchanged and eventually Ripa paid Johnson $750.00 and made arrangements to meet a week later when the two doctors stated they would have more cocaine and dolophine tablets. The next meeting was in Philadelphia on April 4, 1962. This time only the two Agents came to Philadelphia. They went to Doctor Clarke’s office and he asked them to go to the office of Doctor Johnson and wait and shortly afterwards Doctor Clarke arrived. He was carrying a paper bag in which he had cocaine, dol-ophine tablets, and a woman’s diaphragm kit container. This transfer involved $1500.00 given to Doctor Clax*ke. When Doctor Johnson walked in, Doctor Clarke stated he had 2000 more dolophine tablets if they were interested. Doctor Johnson stated he had not received his order forms for cocaine, that he was waiting for them, and if they waited, they still might get the forms and he could pick up the cocaine. Doctor Johnson then demonstrated means of cleaning bottles for the transportation of cocaine and dolophine tablets and discussed future purchases of narcotics. Doctor Clarke then reappeared with two more large bottles of dolophine hydrochloride and Ripa stated he didn’t have enough money; that he had only enough money for one" }, { "docid": "23451937", "title": "", "text": "command over the situation once the officers had reasonable suspicion of criminal activity that warranted further investigation. Once the officers had that reasonable suspicion, they were not obliged to let three of the four associated individuals walk about freely while they investigated McRae, in light of the officers’ powerful concern for their own safety. Clark, 337 F.3d at 1288. The reasonableness of the officers’ conduct under the totality of the circumstances was heightened greatly by the admitted presence of two firearms, which posed a serious risk to the safety of the officers as well as the other individuals present in the crowded parking lot. See Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (“Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our decisions recognize the serious threat that armed criminals pose to public safety; Terry’s rule, which permits protective police searches on the basis of reasonable suspicion ... responds to this very concern.”) (citing Terry, 392 U.S. at 30, 88 S.Ct. 1868); Pennsylvania v. Mimms, 434 U.S. 106, 112, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam) (observing that armed suspects “pose[] a serious and present danger to the safety of the officer”); United States v. Gibson, 64 F.3d 617, 624 (11th Cir.1995) (“Law enforcement officers are at greatest risk when dealing with potentially armed individuals because they are the first to confront this perilous and unpredictable situation”). McRae had a firearm on his person, and Evans indicated that there was another handgun in the nearby open car trunk, well within the reach of all four individuals at the time the officers drew their weapons. Indeed, the known presence of firearms made the reasonableness of the brief detention in this case even more compelling than in Clark, where the officer simply saw two individuals wrestling in the street and had no reason to believe that there were any firearms or other weapons present at the scene, let alone a firearm in a backpack in an open trunk right near where all of the individuals were standing. As the Supreme Court emphasized" }, { "docid": "4097798", "title": "", "text": "qualification requirements, including having two years of law enforcement experience and completing a law enforcement training class. The Tribal PD patrols the reservation, enforces tribal ordinances, and conducts investigations.' Tribal PD General Order 3.1 states that a Tribal PD officer may need to detain an Indian or non-Indian individual to secure the scene, prevent the suspect from leaving the scene, or for officer safety. Tribal PD officers are also permitted to detain non-Indians who are suspected of committing criminal acts on the reservation and to transfer such individuals to outside law enforcement. Non-Indians are to be turned over to outside law enforcement as soon as possible. On December 24, 2014, Tribal PD Officer Daniel Johnson (“Johnson”) received an on-reservation call from a tribal member reporting, that the tribal member’s non-Indian ex-wife was violating the tribal member’s tribal and state protective orders by being at his home and causing a disturbance. Johnson notified the ICSO about the incident and responded to the call. Tribal and local law enforcement knew the suspect well; Tribal PD had responded to 11 calls involving the suspect, and ICSO had previously arrested the sus pect twice for violating the state protective order. Once Johnson arrived at the scene, he approached the suspect, who was sitting in her vehicle. Johnson informed the suspect that she was violating tribal and state court protective orders and that she needed to leave. The suspect became angry and verbally abusive. Johnson informed her that he was going to detain her for violating the protective ordinances and that she would be cited for violating the tribal.nuisance and trespass. ordinances. Johnson repeatedly ordered the suspect to exit the vehicle, but she did not. As Johnson attempted to remove her from the vehicle, the suspect kicked him. In response, Johnson removed his Taser and warned the suspect that if she did not comply, Johnson would deploy his Taser. The suspect did not comply, and Johnson applied his Taser to her. Moments after Johnson deployed his Taser, an ICSO deputy arrived. Several neighbors, who had gathered around Johnson and the suspect, were vérbally abusive toward" } ]

[ { "docid": "19343382", "title": "", "text": "F.3d 49, 60 (1st Cir.2001)). Nonetheless, “preclusion is not strictly a mechanical exercise; [trial] courts have some discretion in deciding whether or not to impose that onerous sanction.” Id. (citing Jackson v. Harvard Univ., 900 F.2d 464, 468-69 (1st Cir.1990)). In this respect, the burden is on the offending party to show that its violation was either justified or harmless. See Wilson v. Bradlees of New England, Lie., 250 F.3d 10, 21 (1st Cir.2001); Heidtman v. County of El Paso, 171 F.3d 1038, 1040 (5th Cir.1999); Salgado, 150 F.3d at 741-42. In deciding whether the offending party's violation was either justified or harmless within the meaning of Fed.R.Civ.P. 37(c)(1), courts have looked to an array of factors, including (1) the surprise to the party against whom the witness was to have testified, (2) the ability of that party to cure that surprise, (3) the extent to which allowing the testimony would disrupt the trial, (4) the explanation for the late disclosure, and (5) the proponent’s need for the challenged testimony. See Westefer, 422 F.3d at 584; Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir.2003); Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir.2003); see also Banks v. United States, 75 Fed.Cl. 294, 298 (2007) (listing comparable tests expressed by several courts of appeals). This court’s decision in CCA Associates, 87 Fed.Cl. 715, sheds light on applying this test to decide when late-disclosed expert testimony should be precluded. In CCA Associates, the court also addressed a situation in which a person had been listed as a fact witness, but the proffering party, in that ease the government, later sought also to adduce expert testimony from the witness. Id. at 720. However, in CCA Associates, the change in designation of the witness also to testify as an expert occurred just three weeks prior to trial, when the government submitted its final witness list. Id. In addition, in the initial listing of witnesses that had occurred at the pre-trial early meeting of counsel, the government had not only listed the relevant person only as a fact" } ]

[ { "docid": "9088752", "title": "", "text": "FRCP 26. Thus, the final question is whether Rule 37 excuses that failure. Rule 37(c)(1) provides that where a party fails to provide information about a witness as required by Rule 26, courts should exclude that information and witness from consideration \"unless the failure was substantially justified or is harmless.\" Whether a failure to comply with Rule 26(a) may be excused under Rule 37 is \"left to the broad discretion of the district court,\" Dynegy Mktg. & Trade v. Multiut Corp. , 648 F.3d 506, 514 (7th Cir. 2011), which may tailor any sanctions to the omission, see Salgado by Salgado v. Gen. Motors Corp. , 150 F.3d 735, 741 n.6 (7th Cir. 1998). When applying Rule 37, courts consider: \"(1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date.\" David v. Caterpillar, Inc. , 324 F.3d 851, 857 (7th Cir. 2003). Here, Defendant's failure to provide an expert report was harmless, mainly because Defendant made substantial, timely disclosures about both Martensen and the survey. Defendant included Martensen in its expert disclosure to Plaintiff in December 2016, stating that he would conduct a consumer survey that would inform Bania's opinions, and noting that although Martensen was considered a nontestifying expert, he might \"be called to testify on the methodology of the survey if needed.\" See [183-5] at 2-3; [183-2]. Although this statement should have signaled to Defendant that Martensen needed to produce an expert report, it still gave Plaintiff clear notice of Martensen's potential testimony well before the close of expert discovery, let alone trial. See [114]. Moreover, Defendant included substantial detail about the survey's design and methodology in the findings report disclosed to Plaintiff in December 2016. See [124-19] at 3-5, 15-24. Finally, although Defendant did not provide as detailed a resume for Martensen as for Bania, Defendant gave Plaintiff a two-page summary of his credentials at that time. See" }, { "docid": "1557018", "title": "", "text": "to challenge the adequacy of the report. See Harvey v. District of Columbia, 949 F.Supp. 874, 877 (D.D.C.1996) (noting that had the moving party “promptly communicated with the plaintiff, they could have met and conferred about the report and still would have had time to file a motion to compel production of a supplemental report.”). ' Fifth, in determining whether or not the automatic exclusion provisions of Rule 37(c)(1) should be applied to exclude expert testimony, the court should consider four factors in assessing whether there was substantial justification for the failure to disclose or harmlessness to the opposing party: (1) the importance of the excluded testimony; (2) the explanation of the party for its failure to comply with the required disclosure; (3) the potential prejudice that would arise from allowing the testimony; and (4) the availability of a continuance to cure such prejudice. Trilogy Communications, Inc. v. Times Fiber Communications, Inc., 109 F.3d 739, 744 (Fed.Cir.1997). With respect to the first factor, the court should evaluate whether the expert whose testimony would be excluded is central to the sponsoring party’s case, or merely one of several experts who will testify to the same point. If exclusion of the testimony would be fatal to the sponsoring party’s case, there is authority which suggests that it would be abuse of discretion to exclude the evidence. Orjias v. Stevenson, 31 F.3d 995, 1005 (10th Cir.1994) (“Notwithstanding Rule 37(c), the district court may be found to have abused its discretion if the exclusion of testimony results in fundamental unfairness in the trial of the case”); Newman v. GHS Osteopathic Inc., 60 F.3d 153, 157 (3rd Cir.1995) (same). With respect to the second factor, the court should take into consideration the reason for the failure to make the disclosure. The court may consider, for example, the experience of counsel, and whether the failure to provide appropriate disclosures was willful or in bad faith as opposed to inadvertent or the result of inexperience. The court might consider whether any of the confusing circumstances discussed above were involved; whether opposing counsel wrote to request the required" }, { "docid": "22567251", "title": "", "text": "counsel until defense counsel conducted voir dire of ... Byrnes on the third day of trial, should have been excluded.” J.A. 1592. Thus, the district court denied Southern States’ motion for a new trial. II. We review the imposition of discovery sanctions for abuse of discretion. See Nelson-Salabes, Inc. v. Morningside Dev., LLC, 284 F.3d 505, 513 n. 10 (4th Cir.2002); see also Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.2001) (“[W]e give particularly wide latitude to the district court’s discretion to issue sanctions under Rule 37(c)(1).”). As explained below, we conclude that the district court did not abuse its discretion in excluding Byrnes’ third opinion due to Southern States’ failure to timely disclose it. However, because of a dispute regarding the proper standards for excluding evidence under Rule 37(c)(1), we will first address this issue. A. 1. In relevant part, Rule 37(c)(1) provides that “[a] party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial ... any witness or information not so disclosed.” Of importance here, Rule 26(e)(1) requires a party to supplement its experts’ reports and deposition testimony when the party learns of new information. If the party fails to do so, the court may exclude any new opinion offered by the expert. See Tenbarge v. Ames Taping Tool Sys., Inc., 190 F.3d 862, 865 (8th Cir.1999). The language of Rule 37(c)(1) provides two exceptions to the general rule excluding evidence that a party seeks to offer but has failed to properly disclose: (1) when the failure to disclose is “substantially] justified],” and (2) when the nondisclosure is “harmless.” Here, in concluding that Byrnes’ undisclosed third opinion should be excluded, the district court applied the following five-factor test for determining whether nondisclosure of evidence is substantially justified or harmless: “ ‘(1) the surprise to the party against whom the witness was to have testified; (2) the ability of the" }, { "docid": "7323325", "title": "", "text": "rules committee note, 2002 Revision. Plaintiff contends that exclusion of the declaration of Mr. Moraveck, the attachments thereto, and any trial testimony of Mr. Moraveck is not only warranted but is mandated by RCFC 37(c)(1). Circuit courts applying the federal rule have held that the sanction of exclusion is automatic and mandatory unless the party violating FRCP 26 shows that the violation was justified or harmless. See Tritek, 63 Fed.Cl. at 750; Dickenson v. Cardiac & Thoracic Surgery of E. Tennessee, 388 F.3d 976, 983 (6th Cir.2004); Primus v. United States, 389 F.3d 231, 234-235 (1st Cir.2004); S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 n. 2 (4th Cir.2003); David v. Caterpillar, 324 F.3d 851, 856-857 (7th Cir.2003). FRCP 37 was amended to extend application of the sanction of exclusion to violations under FRCP 26(e)(2). See Advisory Committee Notes, 2000 Amendment, reprinted in Thomson/West, Federal Civil Judicial Procedure and Rules at 200 (2005). For the reasons set forth above, Defendant failed to amend a prior response to discovery as required by RCFC 26(e)(2). In particular, Defendant failed to supplement its response to Interrogatory No. 11 and Request for Production No. 12. Hence, exclusion would be automatic unless there is a showing by Defendant that the violation is justified or harmless. The burden is on the violating party to prove that the violation was justified or harmless. Tritek, 63 Fed.Cl. at 750 (2005); Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir.1996); Nguyen v. IBP, Inc., 162 F.R.D. 675, 680 (D.Kan.1995); Burney v. Rheem Mfg. Co., 196 F.R.D. 659, 691 n. 29 (M.D.Ala.2000). The factors that have been considered by courts in determining whether sanctions are warranted for failure to supplement include: (1) the importance of the information withheld; (2) the prejudice or surprise to the party against whom the evidence is offered; (3) the likelihood of disruption of the trial; (4) the possibility of curing the prejudice; (5) the explanation for the failure to disclose; and (6) the presence of bad faith or willfulness in not disclosing the evidence. See Tritek, 63 Fed.Cl." }, { "docid": "3387453", "title": "", "text": "any such noncompliance under an abuse-of-discretion standard.” Jordan v. City of Cleveland, 464 F.3d 584, 600 (6th Cir.2006). The Advisory Committee Notes to the 1993 Amendments, which include Rule 37(c)(1), explain that [l]imiting the automatic sanction to violations “without substantial justification,” coupled with the exception for violations that are “harmless,” is needed to avoid unduly harsh penalties in a variety of situations: e.g., the inadvertent omission from a Rule 26(a)(1)(A) disclosure of the name of a potential witness known to all parties; the failure to list as a trial witness a person so listed by another party; or the lack of knowledge of a pro se litigant of the requirement to make disclosures. In the latter situation, however, exclusion would be proper if the requirement for disclosure had been called to the litigant’s attention by either the court or another party. Fed.R.Civ.P. 37, 1993 advisory committee’s note. “[The] Advisory Committee Notes to [the] 1993 Amendments (including Rule 37(c)(1)) ... strongly suggest!] that ‘harmless’ involves an party.” Vance ex rel. Hammons v. United States, 182 F.3d 920, at *5 (6th Cir.1999). In order to assess whether a party’s omitted or late disclosure is “substantially justified” or “harmless,” the Fourth Circuit considers five factors, which we now also adopt: (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party’s explanation for its failure to disclose the evidence. Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 396-97 (4th Cir.2014) (quoting S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th.Cir.2003)). We first address whether the Plaintiffs’ alleged late disclosure was a surprise to Akron. A district judge’s decision to exclude evidence of the plaintiffs back-pay calculations as a sanction is an abuse of discretion when the defendant “had all the information relevant to the computation of damages in its possession” and “had a full opportunity during [the plaintiffs] deposition to question him" }, { "docid": "22567252", "title": "", "text": "as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial ... any witness or information not so disclosed.” Of importance here, Rule 26(e)(1) requires a party to supplement its experts’ reports and deposition testimony when the party learns of new information. If the party fails to do so, the court may exclude any new opinion offered by the expert. See Tenbarge v. Ames Taping Tool Sys., Inc., 190 F.3d 862, 865 (8th Cir.1999). The language of Rule 37(c)(1) provides two exceptions to the general rule excluding evidence that a party seeks to offer but has failed to properly disclose: (1) when the failure to disclose is “substantially] justified],” and (2) when the nondisclosure is “harmless.” Here, in concluding that Byrnes’ undisclosed third opinion should be excluded, the district court applied the following five-factor test for determining whether nondisclosure of evidence is substantially justified or harmless: “ ‘(1) the surprise to the party against whom the witness was to have testified; (2) the ability of the party to cure that surprise; (3) the extent to which allowing the testimony would disrupt the trial; (4) the explanation for the party’s failure to name the witness before trial; and (5) the importance of the testimony.’” Rambus, 145 F.Supp.2d at 726 (quoting Burlington Ins. Co. v. Shipp, 215 F.3d 1317, 2000 WL 620307, at *4 (4th Cir. May 15, 2000) (per curiam) (unpublished table decision)). Southern States argues that the district court erred by excluding Byrnes’ third opinion in the absence of any finding that Southern States acted in bad faith. We find Southern States’ argument unavailing. Rule 37(c)(1) does not require a finding of bad faith or callous disregard of the discovery rules. While Rule 37(c)(1) requires the nondisclosure to be “without substantial justification” and harmful, neither of these requirements suggests that the nondisclosing party must act in bad faith or otherwise culpably. In addition, excluding evidence only when the nondisclosing party acted in bad faith would undermine the basic purpose of Rule 37(c)(1): preventing surprise and prejudice to the opposing party, see" }, { "docid": "928293", "title": "", "text": "party must supplement or correct such information regarding the expert witness’ opinion and report at least thirty days before trial. Fed. R. Civ. P. 26(e)(2), (a)(3)(B). The purpose of Rule 26(a) is to allow litigants “to adequately prepare their cases for trial and to avoid unfair surprise.” Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 396 (4th Cir. 2014). Accordingly, a party who fails to comply with the expert witness disclosure rules is prohibited from “us[ing] that information or witness to supply evidence ... at a trial, unless 'the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). District courts are accorded “broad discretion” in determining whether a party’s nondisclosure or untimely disclosure of evidence is substantially justified or harmless. Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014) (quoting S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003)). In making this determination, district courts are guided by the following factors: (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party’s explanation for its failure to disclose the evidence. S. States, 318 F.3d at 597. The first four factors listed above relate primarily to the harmlessness exception, while the last factor, addressing the party’s explanation for its nondisclosure, relates mainly to the substantial justification exception. Id. The party failing to disclose information bears the burden of establishing that the nondisclosure was substantially justified or was harmless. Wilkins, 751 F.3d at 222 (citations omitted). Applying these principles, we agree with Wilmington that the plaintiffs did not timely disclose Pugh’s net-in-trust formula and calculations. Nevertheless, we conclude that the district court did not abuse its discretion in allowing use of the exhibit and in admitting Pugh’s testimony. We ultimately reach this result based on our conclusion that the untimely nature of the plaintiffs’ disclosures was harmless and did not materially affect Wilmington’s defense in" }, { "docid": "19043554", "title": "", "text": "testimony of two fact witnesses whose identities were disclosed for the first time on the defendant’s final witness list three weeks before trial because “the general topic of the new witnesses’ testimony was canvassed in the original trial in this ease as well as in the general disclosures made during the [pre-trial] meeting of counsel.” CCA Assocs., 87 Fed.Cl. at 720; see Pl.’s Resp. Strike 30. However, this ruling is inapposite because those witnesses were fact witnesses, and therefore the dispute regarding their testimony at trial did not implicate any of the discovery rules pertaining to experts. See CCA Assocs., 87 Fed. Cl. at 720. Furthermore, the court in CCA Associates in fact excluded an untimely expert report and the proposed testimony of the government’s expert. Id. at 720, 721. The second factor in the analysis to determine whether an untimely disclosure is substantially justified or harmless under RCFC 37 examines the ability of a party to cure any prejudice caused by its actions or inactions, and the third factor explores the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court. Banks, 75 Fed.Cl. at 299 (citing Nicholas, 227 F.3d at 148). Because the value of use theory as applied to the public was not presented in either of Mr. Zatkovich’s reports and because the deadline for the disclosure of rebuttal expert reports passed before the deposition took place, the government did not have an opportunity to prepare a rebuttal expert report. See Order of Aug. 3, 2009, Dkt. No. 32, at 1. Furthermore, whatever notice defendant may have had from the deposition that Mr. Zatkovich may testify about his methodology and calculations for applying the value of use theory to the public was undermined when Mi’. Zatko-vich specifically stated that he “chose not to use that particular approach.” Def.’s App. Strike A896 (Zatkovich Dep.). That statement indicated to defendant that it need not move to reopen discovery in order to prepare rebuttal evidence on the value of use theory as applied to the public. In order" }, { "docid": "14338625", "title": "", "text": "to Disclose; False or Misleading Disclosure; Refusal to Admit (1) A party that without substantial justification fails to ... amend a prior response to discovery as required by RCFC 26(e)(2), is not, unless such failure is harmless, permitted to use ... on a motion any ... information not so disclosed. RCFC 37(c)(1) (emphasis added). The Federal Circuit does not appear to have fashioned a test for applying the exclusion provisions of RCFC 26 and 37. Thus, this Court does not have binding precedent as a guide. However, other circuit courts that have applied the RCFC 37 counterpart in the Federal Rules of Civil Procedure have held that the sanction of exclusion [under rule 37] is automatic and mandatory unless the sanctioned party can show that its violation [of rule 26] was either justified or harmless. Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir.1996); Klonoski v. Mahlab, 156 F.3d 255, 269 (1st Cir.1998). The burden is on the party facing sanctions to prove that the violation was justified or harmless. Wilson v. Bradlees of New England, 250 F.3d 10, 21 (1st Cir.2001); Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir.2001). In determining whether a failure to disclose can be considered substantially justified or harmless, the circuit courts have developed various multi-pronged tests. Although each variation has certain idiosyncracies, they largely seem to address at least some combination of the following factors: (1) surprise to the party against whom the evidence would be offered; (2) the importance of the information withheld; and (3) the explanation for the failure to disclose the information. See generally S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir.2003); Woodworker’s Supply, Inc. v. Principal Mutual Life Ins. Co., 170 F.3d 985, 993 (10th Cir.1999); Reilly v. Natwest Mkts. Group Inc., 181 F.3d 253, 269 (2d Cir.1999). 1. Surprise This prong of the test seems to largely coincide with the “not otherwise made known” requirement of RCFC 26(e)(2). Plaintiff certainly was aware that Defendant would assert various non-infringement arguments on summary judgment, so in" }, { "docid": "19043536", "title": "", "text": "when required under RCFC 26(e).” RCFC 26(a)(2)(E). Rule 26(e) provides in relevant part: A party who has made a disclosure under RCFC 26(a) ... must supplement or correct its disclosure or response ... in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing____ RCFC 26(e)(1). For expert witnesses, Rule 26(e) provides the following additional requirements regarding supplementation of information: For an expert whose report must be disclosed under RCFC 26(a)(2)(B), the party’s duty to supplement extends both to information included in the report and to information given during the expert’s deposition. Any additions or changes to this information must be disclosed by the time the party’s pretrial disclosures under RCFC 26(a)(3) are due. RCFC 26(e)(2) (footnote added). “If a party fails to provide information ... as required by RCFC 26(a) or (e), the party is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” RCFC 37(e)(1). The burden of establishing that a failure to disclose is substantially justified or harmless rests on the party who failed to make the required disclosure. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir.2001) (citing Wilson v. Bradlees of New Eng., Inc., 250 F.3d 10, 21 (1st Cir.2001)). “The court has ‘broad discretion’ to determine whether an untimely disclosure is substantially justified or harmless.” Gallagher v. S. Source Packaging, LLC, 568 F.Supp.2d 624, 631 (E.D.N.C.2008) (quoting S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir.2003)). In the absence of a dispositive analysis by the United States Court of Appeals for the Federal Circuit (Federal Circuit) regarding the definition of the phrase “substantially justified or harmless,” in Banks v. United States, the court applied the following four-factor test adopted by the United States Court of Appeals for the Third," }, { "docid": "20604584", "title": "", "text": "disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R.Civ.P. 26(e)(1)(A). Pursuant to Federal Rule of Civil Procedure 37, a party who fails to comply with the disclosure requirements of Rule 26(a) or the supplementation requirement of Rule 26(e) “is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). In determining whether a party’s non-disclosure is substantially justified or harmless, thereby excusing a disclosure violation, a district court is guided by the following factors: (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party’s explanation for its failure to disclose the evidence. S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir.2003). Here, the district court found that Absolute Collection violated Rule 26(a) and (e)’s disclosure requirements by failing to disclose both the payment reports from McKesson and Pavesi as a witness during the initial twenty months of litigation. Because the belated information revealed a new factual basis for Absolute Collection’s bona-fide-error defense and much of the information Absolute Collection had either known or should have known throughout the initial discovery period, the district court found that Absolute Collection’s disclosure violations were neither substantially justified nor harmless. Thus, it excluded Pavesi’s testimony and all evidence related to McKesson, including the collection payment reports. Absolute Collection’s principal argument on appeal—that its identification of Pavesi as a witness and its disclosure of the McKesson information were timely because they were made during the reopened discovery period—cannot survive scrutiny. The district court’s January 10 order reopening discovery did not authorize the parties to conduct the broad discovery Absolute Collection suggests. To the contrary, the order, by" }, { "docid": "6025087", "title": "", "text": "explanation for failure to disclose; (3) the potential prejudice created by permitting use of the expert testimony at trial or on a pending motion; and (4) the ability to cure any prejudice by granting a continuance. See Transclean Corp. v. Bridgewood Servs., Inc., 101 F.Supp.2d 788, 795 (D.Minn.2000); see also Citizens Bank of Batesville, Ark. v. Ford Motor Co., 16 F.3d 965, 966 (8th Cir.1994) (using four factors to determine whether the trial court can exclude witnesses not disclosed in compliance with the pretrial order). The trial court has great discretion in determining whether to strike expert testimony that is disclosed in contravention of the court’s scheduling orders. See Syllar-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 285 (8th Cir.1995). Considering the first factor, the court finds that Owens’ proposed testimony in his surrebuttal and second supplemental report is not particularly important because most of Owens’ responses to Calab ro’s arguments can be brought out by counsel for Qwest on cross-examination of Calabro. For example, Owens’ argument that Calabro’s discussion of the term “traffic pumping” and whether it applies to Sancom’s practices is unpersuasive because Calabro was not aware that Sancom had a relationship with Ocean Bay, that Ocean Bay engaged in certain practices, or that Free Conference paid some companies to generate traffic can be brought out on cross-examination of Calabro without the testimony of Owens. In several other places in the Owens Surrebuttal and Second Supplemental Report, Owens points out issues and facts that Calabro admitted he had not considered. Because many of Owens’ arguments in this report can be brought out at trial without Owens’ testimony, the proposed testimony is not particularly important. With respect to the second factor, the court finds Qwest’s explanation for the failure to timely disclose the opinions contained in the Owens Surrebuttal and Second Supplemental Report to be persuasive. Sancom disclosed Calabro’s initial report on March 27, 2009. This sixteen-page report provided an overview of the operations of Sancom and Free Conferencing, a description of the steps involved in call termination of conference calls, a discussion of Voice Over Internet Protocol" }, { "docid": "13204515", "title": "", "text": "that the Federal Circuit has established that a trial judge should consider five factors in determining whether non-disclosure of evidence before trial is harmless, citing and quoting MicroStrategy Inc. v. Business Objects, S.A., 429 F.3d 1344, 1357 (Fed.Cir.2005). See Def.’s Resp. at 4-5. In MicroStrategy, the Federal Circuit was applying the Fourth Circuit’s procedural rules in a patent case, not its own rale. The Federal Circuit quoted the Fourth Circuit’s criteria for determining harmlessness vel non of non-disclosure, as follows: (1) the surprise to the party against whom the witness was to have testified; (2) the ability of the party to cure that surprise; (3) the extent to which allowing the testimony would disrupt the trial; (4) the explanation for the party’s failure to name the witness before trial; and (5) the importance of the testimony. MicroStrategy, 429 F.3d at 1357 (quoting Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir.2003)). In general terms, the Fourth Circuit’s criteria are reflected in RCFC Appendix A ¶ 13(b). Requiring a showing of “compelling need” for testimony from a previously undisclosed witness correlates to factors (4) and (5) of the Fourth Circuit’s test. Moreover, factors (1) and (2) relate to prejudice to the other party, and factor (3) concerns “the interest in the fair and efficient administration of justice.” Taylor, 484 U.S. at 415, 108 S.Ct. 646. These same considerations bear on the court’s application of RCFC Appendix A ¶ 13(b), albeit in the specific framework of this court’s particular pretrial procedures as spelled out in the Appendix. It is instructive that in Mi-croStrategy the Federal Circuit ruled that “[t]he district court ... acted within its discretion in excluding MieroStrategy’s non-expert damages theories for failure to supplement discovery interrogatories.” 429 F.3d at 1356; see also Roton Barrier, Inc. v. Stanley Works, 79 F.3d 1112, 1122 (Fed.Cir.1996) (reviewing decision whether or not to allow witnesses’ testimony for abuse of discretion). Whether exclusion as a sanction should be imposed accordingly turns on the government’s explanation for the belated listing of Messrs. East and Bodaken as witnesses and of Mr." }, { "docid": "1557017", "title": "", "text": "most important goal is to avoid surprise at trial or last minute discovery about expert testimony on the eve of trial, then counsel should consider filing a motion to compel adequate disclosures or in the alternative to exclude expert testimony as soon as possible following the discovery cutoff, so that if the court declines to exclude the expert’s testimony, the opinions of that expert may be discovered, and a rebuttal expert engaged as far as possible ahead of trial. Alternatively, if the most important goal of the attorney is to preclude the expert from testifying at trial by evoking the automatic exclusion provisions of Rule 37(c)(1), he or she should remember that this course is not risk free, and that the exclusion of evidence is a severe sanction which the court may be reluctant to impose despite Rule 37(c)(1). At least one court, for example, has recently refused to strike an expert’s testimony for failing to comply with Rule 26(a)(2)(B) disclosures where the party moving for exclusion waited until the day before the discovery cut-off to challenge the adequacy of the report. See Harvey v. District of Columbia, 949 F.Supp. 874, 877 (D.D.C.1996) (noting that had the moving party “promptly communicated with the plaintiff, they could have met and conferred about the report and still would have had time to file a motion to compel production of a supplemental report.”). ' Fifth, in determining whether or not the automatic exclusion provisions of Rule 37(c)(1) should be applied to exclude expert testimony, the court should consider four factors in assessing whether there was substantial justification for the failure to disclose or harmlessness to the opposing party: (1) the importance of the excluded testimony; (2) the explanation of the party for its failure to comply with the required disclosure; (3) the potential prejudice that would arise from allowing the testimony; and (4) the availability of a continuance to cure such prejudice. Trilogy Communications, Inc. v. Times Fiber Communications, Inc., 109 F.3d 739, 744 (Fed.Cir.1997). With respect to the first factor, the court should evaluate whether the expert whose testimony would be excluded" }, { "docid": "20031821", "title": "", "text": "that *** fails to disclose information required by Rule 26(a) or 26(e)(1) shall not be ’permitted to use [the materials not disclosed] at a trial, at a hearing, or on a motion,” “unless such failure is harmless,” or there was “substantial justifieation” for that failure. In addition, Rule 16(f) authorizes a District Court to impose sanctions for the breach of a Pretrial Order. In applying these Rules, we recognize that “the failure to disclose in a timely manner is equivalent to failure to disclose,” and that a party must produce the required evidence “within deadlines set by the court or risk sanctions under Rules 16 and 37.” Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir.1998). While sanctions under Rule 37(c)(1) are mandatory, as we have noted, exclusion of evidence should not apply if the offending party’s failure was “substantially justified,” or if the failure was “harmless.” These exceptions to Rule 37(c)(l)’s imperative serve “to avoid unduly harsh penalties” that may result from an inflexible application of the Rule. Rule 37(c), Federal Rules of Civil Procedure, Advisory Committee Notes — 1993 Amendments. In determining whether the automatic exclusion provisions of Rule 37(c)(1) should apply, the Court should consider the following four factors in assessing the substantiality of any proffered justification for the failure to disclose, as well as the harmlessness of that failure: 1) the importance of the excluded material; 2) the explanation of the party for its failure to comply with the required disclosure; 3) the potential prejudice that would arise from allowing the material to be used at Trial, or on a Motion; and, 4) the availability of a continuance to cure such prejudice. See, Citizens Bank v. Ford Motor Co., 16 F.3d 965, 966 (8th Cir.1994); Millen v. Mayo Foundation, 170 F.R.D. 462, 465 (1996); see also, Trilogy Communications, Inc. v. Times Fiber Communications, Inc., 109 F.3d 739, 744 (Fed.Cir.1997). It is beyond dispute that Johnson’s expert report, and supplemental report, which were produced on August 31, 1998, and November 17, 1998, respectively, were untimely under our Scheduling Order. The untimeliness of Johnson’s first expert" }, { "docid": "8569645", "title": "", "text": "alone, the district court was well within its discretion to prevent Yurkerwich from testifying. This court is aware of the Fourth Circuit’s rule in Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592 (4th Cir.2003), discussing whether exclusion of testimony is an appropriate sanction for a late disclosure to the opposing party. MicroStrategy argues that because Yurkerwich’s testimony is supported by his supplement and revised report, under Southern States his testimony is admissible even if these reports were untimely. The Southern States precedent might apply to some degree if the only reason for excluding Yurkerwich was a tardiness concern. In this case, however, the district court excluded all of MicroStrategy’s expert evidence, in part, due to its flawed methodology. Thus Southern States simply does not apply. The district court also acted within its discretion in excluding MicroStrategy’s non-expert damages theories for failure to supplement discovery interrogatories. Specifically, during the discovery process, Business Objects served an interrogatory on MicroStrategy that required MicroStrategy to identify its damages theories and the factual basis and methodology for its calculations. At trial, MicroStrategy sought to introduce evidence of damages not disclosed in response to that interrogatory. Therefore, the district court excluded the evidence under Rule 37(c)(1) of the Federal Rules of Civil Procedure. MicroStrategy now presents three arguments as to why the district court abused its discretion in excluding its non-expert damages theories: (1) a supplemental interrogatory response filed on Oct. 7, 2002 sufficiently disclosed the new damage theories; (2) even if the Oct. 7, 2002 supplement did not sufficiently disclose it, the evidence should not have been excluded under the Southern States exclusion test; and (3) Business Objects did not properly object to introduction of the evidence when it was introduced. Not one of these theories is persuasive. MicroStrategy’s first argument directly contradicts statements made at trial, acknowledging no supplements incorporating the non-expert damages evidence were ever filed. Specifically, MicroStrategy sought to excuse its failure to supplement because they had relied on their expert report which the district court excluded on the eve of trial and left no time to supplement" }, { "docid": "20031822", "title": "", "text": "of Civil Procedure, Advisory Committee Notes — 1993 Amendments. In determining whether the automatic exclusion provisions of Rule 37(c)(1) should apply, the Court should consider the following four factors in assessing the substantiality of any proffered justification for the failure to disclose, as well as the harmlessness of that failure: 1) the importance of the excluded material; 2) the explanation of the party for its failure to comply with the required disclosure; 3) the potential prejudice that would arise from allowing the material to be used at Trial, or on a Motion; and, 4) the availability of a continuance to cure such prejudice. See, Citizens Bank v. Ford Motor Co., 16 F.3d 965, 966 (8th Cir.1994); Millen v. Mayo Foundation, 170 F.R.D. 462, 465 (1996); see also, Trilogy Communications, Inc. v. Times Fiber Communications, Inc., 109 F.3d 739, 744 (Fed.Cir.1997). It is beyond dispute that Johnson’s expert report, and supplemental report, which were produced on August 31, 1998, and November 17, 1998, respectively, were untimely under our Scheduling Order. The untimeliness of Johnson’s first expert report was harmless for, after that report was produced, discovery was extended for an additional 45 days, in order to allow for a full inquiry into Johnson’s opinions. Indeed, Johnson was deposed on the subject matter contained in his original report and, therefore, Johnson’s expert report should not be excluded at Trial. On the other hand, in view of the fact that the untimely disclosure of Johnson’s supplemental report denied the Plaintiffs an opportunity to depose Johnson on the new opinions which were added to his initial report, Bridge-wood does not fare well under the four-factor test that we are obligated to apply to facially untimely expert disclosures. Unquestionably, the material that the Plaintiffs seek to exclude in Johnson’s supplemental report is important. His supplemental report contains the only qualified expert opinions by Bridgewood, that JP 2-72299 anticipates the claims of the Viken Patent, and that Becnel’s unpatent-ed Hydro-Pure device invalidates the Viken Patent. In view of their importance, however, Bridgewood’s failure to present a cogent justification for its failure to disclose those opinions, until" }, { "docid": "928292", "title": "", "text": "counsel with a written report prepared and signed by an expert witness who may testify at trial. Fed. R. Civ. P. 26(a)(2)(A)-(B). The expert witness’ report must contain, among other things, “a complete statement of all opinions the [expert] witness will express and the basis and reasons for them,” “the facts or data considered by the witness in forming them,” and “any exhibits that will be used to summarize or support them.” Fed. R. Civ. P. 26(a)(2)(B)(i)-(iii). A party must make required expert witness disclosures “at the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). A litigant also is required to supplement information provided in its expert witness report and during the expert witness’ de position “if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A), (e)(2). Unless the court orders otherwise, a party must supplement or correct such information regarding the expert witness’ opinion and report at least thirty days before trial. Fed. R. Civ. P. 26(e)(2), (a)(3)(B). The purpose of Rule 26(a) is to allow litigants “to adequately prepare their cases for trial and to avoid unfair surprise.” Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 396 (4th Cir. 2014). Accordingly, a party who fails to comply with the expert witness disclosure rules is prohibited from “us[ing] that information or witness to supply evidence ... at a trial, unless 'the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). District courts are accorded “broad discretion” in determining whether a party’s nondisclosure or untimely disclosure of evidence is substantially justified or harmless. Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014) (quoting S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003)). In making this determination, district courts are guided by the following factors: (1) the surprise to the party against whom the evidence would be" }, { "docid": "19043537", "title": "", "text": "information ... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” RCFC 37(e)(1). The burden of establishing that a failure to disclose is substantially justified or harmless rests on the party who failed to make the required disclosure. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir.2001) (citing Wilson v. Bradlees of New Eng., Inc., 250 F.3d 10, 21 (1st Cir.2001)). “The court has ‘broad discretion’ to determine whether an untimely disclosure is substantially justified or harmless.” Gallagher v. S. Source Packaging, LLC, 568 F.Supp.2d 624, 631 (E.D.N.C.2008) (quoting S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir.2003)). In the absence of a dispositive analysis by the United States Court of Appeals for the Federal Circuit (Federal Circuit) regarding the definition of the phrase “substantially justified or harmless,” in Banks v. United States, the court applied the following four-factor test adopted by the United States Court of Appeals for the Third, Seventh and Tenth Circuits to determine whether the failure to disclose required information pursuant to Rule 26(a) was substantially justified or harmless: 1) the prejudice or surprise of the party against whom the evidence would have been admitted; 2) the ability of the party to cure that prejudice; 3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and 4) bad faith or willfulness in failing to comply with a court order or discovery obligation. 75 Fed.Cl. 294,298-99 (2007) (citing Nicholas v. Penn. State Univ., 227 F.3d 133, 148 (3d Cir.2000); Westefer v. Snyder, 422 F.3d 570, 584 n. 21 (7th Cir.2005); Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.1999)). If the court finds that the untimely expert disclosure is not necessary for the purposes of supplementation under RCFC 26(e) and is not “substantially justified or harmless,” RCFC 37(e)(1), the court may strike the untimely disclosure, see Banks, 75 Fed.Cl. at 298 (citing Smith" }, { "docid": "6025086", "title": "", "text": "Owens’ discussion of netting in Section C, and finds that the report does not qualify as a supplemental report under Rule 26(e) because it does not correct inaccuracies or add information that was unavailable to Owens at the time of the initial report. Rather, the Owens Surrebuttal and Second Supplemental Report reads more like a rebuttal report offered solely to contradict or rebut expert testimony offered by Sancom. See Fed.R.Civ.P. 26(a)(2)(C)(ii). But as the court previously noted, Qwest disclosed the Owens Surrebuttal and Second Supplemental Report two months after the deadline for rebuttal reports. Because the Owens Surrebuttal and Second Supplemental Report does not qualify as a supplemental report under Rule 26(e), it is untimely. Untimely disclosure of an expert opinion triggers Rule 37(c)(1) sanctions, including the exclusion at trial of testimony on undisclosed opinions, unless “the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The court should consider four factors in determining whether exclusion is the proper sanction for untimely expert testimony: (1) the importance of the excluded expert testimony; (2) the party’s explanation for failure to disclose; (3) the potential prejudice created by permitting use of the expert testimony at trial or on a pending motion; and (4) the ability to cure any prejudice by granting a continuance. See Transclean Corp. v. Bridgewood Servs., Inc., 101 F.Supp.2d 788, 795 (D.Minn.2000); see also Citizens Bank of Batesville, Ark. v. Ford Motor Co., 16 F.3d 965, 966 (8th Cir.1994) (using four factors to determine whether the trial court can exclude witnesses not disclosed in compliance with the pretrial order). The trial court has great discretion in determining whether to strike expert testimony that is disclosed in contravention of the court’s scheduling orders. See Syllar-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 285 (8th Cir.1995). Considering the first factor, the court finds that Owens’ proposed testimony in his surrebuttal and second supplemental report is not particularly important because most of Owens’ responses to Calab ro’s arguments can be brought out by counsel for Qwest on cross-examination of Calabro. For example, Owens’ argument that Calabro’s discussion of the term “traffic" } ]

[ { "docid": "22903570", "title": "", "text": "of fact to conclude that [Bruder] knew” that this would happen or that he entertained any expectations on that score that were based on such knowledge. At best, the government proved that Bruder, knowing of the existence of a federal grand jury investigation, lied to federal investigators regarding issues pertinent to the grand jury’s investigation. The government has therefore failed to offer sufficient evidence of Bruder’s intent to obstruct the federal grand jury for “if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.” Aguilar, 515 U.S. at 599, 115 S.Ct. 2357. Because Bruder was the only alleged conspirator to have engaged in conduct directed toward federal investigators, the absence of sufficient evidence to establish Bruder’s specific intent to obstruct the federal grand jury means that there was insufficient evidence to permit a reasonable jury to conclude beyond a reasonable doubt that obstruction of the federal grand jury fell within the scope of the alleged conspiratorial agreement. While there may have been sufficient evidence to support appellants’ convictions for c'onspiracy to engage in conduct violative of other federal statutes, such as 18 U.S.C. § 1001 (prohibiting giving materially false statements to federal officials), appellants were not charged with participating in such a conspiracy — they were charged with conspiracy to violate 18 U.S.C. § 1503. The government failed to prove the charged conspiracy beyond a reasonable doubt. See Aguilar, 515 U.S. at 599-601, 115 S.Ct. 2357. In conclusion, we find that the evidence was insufficient to support appellants’ convictions for conspiracy to violate 18 U.S.C. § 1503. Accordingly, we reverse the convictions. Because the Double Jeopardy Clause precludes retrying appellants with respect to these charges, see Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), we direct entry of a judgment of acquittal as to Count Twelve of the indictment. REMAINING CLAIMS Appellants have raised several additional challenges to their convictions. In light of our disposition with respect to both trials, we do not address these claims and express no opinion as" } ]

[ { "docid": "8802689", "title": "", "text": "Regan’s post-trial motions, the court sentenced him on March 19, 1996. Finding that Regan’s perjury had substantially interfered with the administration of justice, the court, under U.S.S.G. § 2J1.3(b)(2), applied a three-level enhancement to his base offense level of twelve, resulting in an adjusted offense level of fifteen and a sentencing range of 18-24 months. Over the government’s objection, the court departed downward under U.S.S.G. § 5K2.0, imposing a sentence of one year and one day of imprisonment and two years of supervised release. Discussion On appeal, Regan argues that the district court erred in (1) refusing to dismiss the indictment on account of the government’s alleged abuse of the grand jury process, (2) precluding him from introducing at trial evidence that the government’s investigation was illegitimate and that the witnesses who inspired the investigation were untrustworthy, (3) denying his motion to call AUSA Landis as a witness or- to disqualify her as prosecutor, (4) ruling that the evidence of materiality was sufficient to support the jury’s verdict, and (5) enhancing his sentence for “substantial interference with the administration of justice.” I. The Pre-Trial Rulings A. Propriety of the Grand Jury Proceedings Invoking the “perjury trap” doctrine, which this court has discussed but not adopted, see Wheel v. Robinson, 34 F.3d 60, 67-68 (2d Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1697, 131 L.Ed.2d 560 (1995), Regan argues that the district court should have dismissed the indictment for improprieties surrounding his grand jury testimony. In essence, Regan claims that the government violated the due process clause of the Fifth Amendment by calling him before the Grand Jury “for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury,” id. at 67 (quoting United States v. Chen, 933 F.2d 793, 796 (9th Cir.1991)), and that this conduct required dismissal of the indictment. We have noted that the existence of a “legitimate basis” for an investigation and for particular questions answered falsely precludes “any application of the ‘perjury trap’ doctrine.” Wheel, 34 F.3d at 68. The record supports the district court’s ruling that the government" }, { "docid": "14498108", "title": "", "text": "a corner’ to avoid the splashing of urine coming from prisoners in other cells,” because these conditions “are a far cry from deliberate torture” warranting dismissal); United States v. Yunis, 681 F.Supp. 909, 921 (D.D.C.1988), rev’d on other grounds, 859 F.2d 953 (D.C.Cir.1988), aff'd, 924 F.2d 1086 (D.C.Cir.1991) (holding that Toscanino exception did not apply when defendant alleged that during the arrest both of his wrists were fractured and he suffered various medical problems for which he received inadequate medical attention, and the government deliberately delayed his arrival in the United States by four days). Government Set a Perjury Trap? The protection that the Due Process Clause affords defendants does not begin and end with Toscanino. The Second Circuit has also suggested that the setting of a “perjury trap” may constitute the type of “outrageous conduct” that would violate the Due Process Clause. See United States v. Regan, 103 F.3d 1072, 1079 (2d Cir.1997); Wheel v. Robinson, 34 F.3d 60, 67-68 (2d Cir.1994). Under the perjury trap doctrine, a perjury charge must be dismissed when a prosecutor conducts an investigation or asks particular questions of a witness “for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury.” Wheel, 34 F.3d at 67. See also United States v. Chen, 933 F.2d 793, 796-97 (9th Cir.1991) (“[Perjury trap] involves the government’s use of its investigatory powers to secure a pérjury indictment on matters which are neither material nor germane to a legitimate ongoing investigation of the grand jury. Such governmental conduct might violate a defendant’s fifth amendment right to due process, or be an abuse of grand jury proceedings.”) (citations omitted). At the same time, grand juries and prosecutors are afforded a wide degree of latitude in their investigations. Thus, a perjury indictment may not be dismissed if there exists a “legitimate basis” for the questions that were answered falsely. Regan, 103 F.3d at 1079. The facts of this case raise a question about whether the government had a legitimate basis for repeatedly asking the particular questions that it now accuses Awadallah of answering falsely." }, { "docid": "14498091", "title": "", "text": "can’t see exactly my handwriting and I was confused at that time. I was a little nervous and so I said some of it is not my handwriting, but these, all of it is in my handwriting. 10/15/01 GJ Tr. at 8,12-13. Awadallah is now charged with making a false declaration to the grand jury when he testified on October 10 that he did not know Khalid Al-Mihdhar’s name. See Awadallah, 173 F.Supp.2d at 187-88. Awadallah is also charged with lying to the grand jury when he denied that he wrote the name “Khalid” and certain other words in the exam booklet. See id. at 188. V. THE MOTIONS TO DISMISS THE INDICTMENT Awadallah argues that the indictment for perjury must be dismissed for four reasons: (1) he recanted his false testimony; (2) the government violated the Vienna Convention on Consular Relations by not informing him of his rights as a foreign national; (3) the government interfered with his right to counsel; and (4) the government denied him due process while holding him in custody both prior to his grand jury appearance and during his appearance. See Notice of Motion ¶¶ 1-4. A. The Recantation Defense: 18 U.S.C. § 1623(d) Pursuant to 18 U.S.C. § 1623(d), recantation is a complete defense to a charge of perjury before a grand jury. Specifically section 1623(d) states: Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed. 18 U.S.C. § 1623(d) (emphasis added). As the plain language of the statute shows, a recantation will only bar prosecution for perjury if the defendant admits that his allegedly perjurious statement is “false”. Every Circuit Court that has addressed this issue, including this Circuit, has held that the recantation defense is an issue of law to be decided by the" }, { "docid": "14498112", "title": "", "text": "Awa-dallah also identified one person who might know his name. See id. Despite this, it was only at the end of the day that the prosecutors showed Awadallah a copy of the examination booklet. Whether there was any legitimate purpose for this type of questioning or whether it was a perjury trap is an issue that must be resolved. VI. THE MOTIONS TO SUPPRESS Awadallah moves for an order suppressing all evidence that the FBI agents seized when they searched his property on September 20, 2001, on the ground that their seizure was the product of “coercions, threats and deception.” Notice of Motion ¶ 7; Berman Aff. ¶¶ 38^40. This conclusion may be reached on two grounds: (1) Awadallah may have been unlawfully arrested on September 20, 2001, and (2) even if not arrested, the FBI agents may have coerced him into giving his consent to search. For the same reasons, Awadallah also seeks “[a]n order suppressing all statements made by the defendant to government agents between September 20, 2001, and October 3, 2001.” Notice of Motion ¶ 8 (emphasis added); Berman Aff. ¶ 41. See also Wong Sun v. United States, 371 U.S. 471, 474, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The government, in turn, has given three reasons for why “no hearing on these matters is necessary.” Gov’t Mem. at 36. First, “the defendant’s motion is not supported by an' affidavit or other evidence from the defendant or anyone else with personal knowledge of the events.” Id. Second, Awadallah’s allegations, even if proven, “do not suffice to make out a claim of factual involuntariness.” Id. at 46. Third, “even accepting arguendo that the evidence and statements were obtained im properly, the exclusionary rule does not apply because the evidence was seized before the defendant made the statements that form the basis of the current perjury prosecution.” Id. (emphasis added). For the reasons that follow, the government’s arguments are rejected. An evi-dentiary hearing will be held to determine whether Awadallah was unlawfully arrested, whether his consent was coerced, whether his statements were involuntarily given and, if so, what" }, { "docid": "14460404", "title": "", "text": "consents were not voluntary. 3. The government did not set a perjury trap for Awadallah. SO ORDERED. . “Tr.” refers to the transcript of the hearing held on February 15 to 18, 2002. \"GX” refers to a Government exhibit at the hearing; \"[date] Tr.” refers to the transcript of court or grand jury proceedings op the indicated date. \"GJX” refers to a grand jury exhibit. \"Ber-man Aff.” refers to the Affirmation of Jesse Berman, Esq., dated December 3, 2001. \"Awadallah Aff.” refers to the Affidavit of Osama Awadallah, dated December 26, 2001. \"Gov’t Mem.” refers to the \"Government's Post Hearing Memorandum in Opoosition to Defendant’s Motions to Dismiss the Indictment and to Suppress the Evidence.” “Reply Mem.” refers to the Government’s Post-Hearing Reply Memorandum. \"Plunkett Aff.” refers to the affidavit submitted by Special Agent William Ryan Plunkett on September 21,2001. . \"There was [also] a gentleman from the ' California Department of Justice,” Tr. at 29 (Agent Alston testifying), \"[o]ne FBI support employee — a computer specialist,” id. at 226 (Agent Bedell testifying) and \"another individual there and ... she was with a local law enforcement agency that also worked in computers,” id., who participated in the investigation on September 20th (i.e., the search of Awadallah’s apartment and cars). . Some of the agents knew about the assignment prior to September 20th. See, e.g., Tr. at 168 (Agent Kozma testifying: \"The night prior to the 20th I was informed to come into the San Diego field office at which time we would transport over to the Saranac address.”). . The report prepared by Agents Rielly and Crawford lists seven “California License Plates [that] were obtained from vehicles that were not parked in numbered parking spaces.\" GX 3507-A. Two of those numbers belonged to Awadallah’s gray and white Hon-das. . Agent Dayhoff did not specify in his testimony whom he interviewed at Grossmont College. See Tr. at 200. In addition, while at the college, Agents Davis and Dayhoff “got switched to another, found him, interviewed him, and he gave us information on the first individual we were interested in....” Id. at" }, { "docid": "23689604", "title": "", "text": "the disagreement. The question for the Judicial Branch of this nation is simply whether Burke committed the crime of which he has been accused. B. Perjury Trap Burke next argues that the district court erred in denying his motion to dismiss the indictment on his theory that the prosecution called him before the grand jury for the purpose of producing perjured testimony. According to the Ninth Circuit, a “perjury trap” is created when “the government calls a witness before a grand jury for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury.” United States v. Chen, 933 F.2d 793, 796 (9th Cir.1991). We have not embraced this doctrine, however& see, e.g., United States v. Devitt, 499 F.2d 135, 140 (7th Cir.1974); United States v. Nickels, 502 F.2d 1173 (7th Cir.1974); and do not see any reason to adopt it now. Why would a prosecutor be forbidden to give a suspect an opportunity to commit the crime of perjury? Investigators offer opportunities to commit many offenses and may lead people toward their commission. Usually the offers concern drugs, weapons, or bribery, but the principle is not limited to these offenses. If the inducement is so powerful that it amounts to entrapment by overcoming the will of a person not already predisposed to commit the offense, while providing the means to a person who could not have committed the crime without assistance, then criminal punishment is not proper. United States v. Hollingsworth, 27 F.3d 1196 (7th Cir.1994) (en banc). But if the suspect is predisposed to commit the offense, and could have committed it without assistance, prosecution and conviction are appropriate. See, e.g., Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 118 (1976); United States v. Murphy, 768 F.2d 1518 (7th Cir.1985). Burke has not.raisedan entrapment defense; his predisposition to lie is obvious, and he did not need the government’s aid in order to tell a lie. Indeed, it is knowledge of a suspect’s predisposition to commit" }, { "docid": "22641232", "title": "", "text": "no, he hasn’t raised an issue that you think is important, bring it up with [your attorney]. He’ll make a decision on that, and then, if you are unhappy with that decision, then you can communicate with the court. In addition to the motion for a new trial which her attorney filed, McKenna filed a pro se motion raising additional claims, including a motion to dismiss. The district court denied the motion for a new trial as well as McKenna’s pro se motions, finding each of the defense arguments to be without merit. The district court then sentenced McKenna to six months of incarceration, followed by three years of supervised release with the first six months to be served in home detention; a $10,000 fine; and a mandatory $300 special assessment. This timely appeal followed. DISCUSSION A. Perjury Trap McKenna argues that Counts 2 through 4 should have been dismissed because the government violated her due process rights when it employed a “perjury trap” to obtain the statements alleged in those counts. Although we have not yet recognized a so-called perjury trap as a valid defense, we have noted cases from other jurisdictions holding that the government violates due process when it “calls a witness before the grand jury with the primary purpose of obtaining testimony from him in order to prosecute him later for perjury.” See United States v. Chen, 933 F.2d 793, 796 (9th Cir.1991). The perjury trap doctrine has been applied in other jurisdictions only where the government used “its investigatory powers to secure a perjury indictment on matters which are neither material nor germane to a legitimate ongoing investigation of the grand jury.” Id. at 796. Thus, “[w]hen testimony is elicited before a grand jury that is attempting to obtain useful information in furtherance of its investigation, or conducting a legitimate investigation into crimes which had in fact taken place in its jurisdiction, the perjury trap doctrine is, by definition, inapplicable.” Id. at 797 (internal quotation marks and citations omitted). Here, the government did not use its investigatory powers to question McKenna before a grand jury." }, { "docid": "14460398", "title": "", "text": "felony or a crime in the officer’s presence). Any statements that Awadallah made are tainted by this unlawful arrest and must be suppressed. See supra Part IV.B.2. V. PERJURY TRAP In an earlier Opinion, this Court raised the issue of whether Awadallah was the victim of a perjury trap. See Awadallah II, 202 F.Supp.3d at - - -. The parties have now addressed this issue. After reviewing these submissions, I cannot conclude that the government violated defendant’s Fifth Amendment right to due process by setting a perjury trap. Some defenses, although graced with a name, seem to be illusory. “The recantation defense,” for example, “appears to be an illusion often asserted but never found.” Id. at -. The same can be said of “perjury trap.” In case after case, the courts in this Circuit have recognized that a perjury trap could theoretically exist but nonetheless found that “the facts of [the particular] case rendered] the perjury trap defense inapplicable.” United States v. Regan, 103 F.3d 1072, 1079 (2d Cir.1997) (citations and quotations omitted). See also Wheel v. Robinson, 34 F.3d 60, 67-68 (2d Cir.1994)(“All of these cases recognized the possibility of a ‘perjury trap’ doctrine, but in each case the court concluded that the defendant’s due process rights were not violated.... We reach the same conclusion in this case, and accordingly do not decide whether the ‘perjury trap’ defense is available in the Second Circuit.”) (referring to United States v. Chen, 933 F.2d 793, 796-97 (9th Cir.1991); United States v. Simone, 627 F.Süpp. 1264, 1268 (D.N.J.1986); United States v. Crisconi, 520 F.Supp. 915, 920 (D.Del.1981); and United States v. Catalano, No. 92 CR. 1189, 1993 WL 183694, at *4 (S.D.N.Y. May 25, 1993)). This case is no exception to the long line of authorities cited. It cannot be said that there was no “legitimate basis” for this grand jury investigation, which was investigating the World Trade Center attacks. Regan, 103 F.3d at 1079 (quotation marks, citation omitted). Nor was the questioning unrelated to the purpose of the investigation. See Wheel, 34 F.3d at 67. The questioning of Awadallah focused on" }, { "docid": "14460400", "title": "", "text": "his acquaintance with two of the known hijackers and their activities during the time he knew them, which was approximately nine months prior to the hijacking. Answers to these questions could conceivably have advanced the investigation by providing leads as to other contacts or acquaintances of those hijackers, who might, in turn, have had pertinent information. While not legally sufficient to dismiss the indictment, the government’s motivation in calling Awadallah before the grand jury remains troubling. Awadallah had consistently told the authorities that he knew Al-Hazmi and he provided details of their encounters. He had also told the police that he had met another man in Al-Hazmi’s company on more than one occasion and provided a physical description of that other man. Moreover, because hearsay is admissible in a grand jury, the government could have had the FBI agents who interviewed Awadallah provide much of the same information to the grand jury. See Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956). Most importantly, Awadallah had consistently denied knowing that man’s name — he said so on September 20 during his interview with the FBI, again on September 21 during his polygraph examination and subsequent interviews, and once again at the proffer session on October 4, 2001. Under these circumstances, it is unclear how Awadallah’s testimony on this point could possibly have furthered the grand jury’s investigation. See Brown v. United States, 245 F.2d 549, 555 (8th Cir.1957)(“Extracting the testimony from defendant had no tendency to support any possible action of the grand jury within its competency. The purpose to get him indicted for perjury and nothing else is manifest beyond all reasonable doubt.”). The government knew that calling Awa-dallah before the grand jury placed him in an impossible position. If he testified in a manner consistent with his four prior statements to federal officials, as was to be expected, he would be indicted for perjury. If, on the other hand, he now admitted knowing Al-Mihdhar’s name (as opposed to knowing him, which he repeatedly admitted), he could be indicted for having previously lied" }, { "docid": "14460401", "title": "", "text": "that man’s name — he said so on September 20 during his interview with the FBI, again on September 21 during his polygraph examination and subsequent interviews, and once again at the proffer session on October 4, 2001. Under these circumstances, it is unclear how Awadallah’s testimony on this point could possibly have furthered the grand jury’s investigation. See Brown v. United States, 245 F.2d 549, 555 (8th Cir.1957)(“Extracting the testimony from defendant had no tendency to support any possible action of the grand jury within its competency. The purpose to get him indicted for perjury and nothing else is manifest beyond all reasonable doubt.”). The government knew that calling Awa-dallah before the grand jury placed him in an impossible position. If he testified in a manner consistent with his four prior statements to federal officials, as was to be expected, he would be indicted for perjury. If, on the other hand, he now admitted knowing Al-Mihdhar’s name (as opposed to knowing him, which he repeatedly admitted), he could be indicted for having previously lied to federal officials. Either way, this no-win, no-exit game would have little, if any, impact on the pending investigation. Regardless of the futility of the government’s questions or the dubiousness of its motives, courts have repeatedly held that such a situation does not constitute a “perjury trap.” See Chen, 933 F.2d at 798 (“[W]hile the government may have anticipated Chen would give false testimony before the grand jury, it is also apparent the government ‘recognized that [Chen] ... might provide information about the pending investigation.’ Indeed, the government had reason to expect that Chen would testify truthfully once placed in the solemn atmosphere of the grand jury room.”) (citation omitted); United States v. Chevoor, 526 F.2d 178, 185 (1st Cir.1975) (holding that although government expected Chevoor to perjure himself, it was not impermissible to call him to testify), abrogated on other grounds, Brogan v. United States, 522 U.S. 398, 118 S.Ct. 805, 139 L.Ed.2d 830 (1998); United States v. Bin Laden, No. S(7) 98 Cr. 1023, 2001 WL 30061, at *8, n. 15 (S.D.N.Y. Jan.2," }, { "docid": "14460397", "title": "", "text": "Awadal-lah to tell the truth about his supposed connection to the September 11th attacks by threatening to send him to prison for five years for lying. Agents Teixeira and Godshall then accused him of being one of the September 11th terrorists and told him to sit down and not move. The agents threatened to fly him to New York and detain him for one year in order to find out more about’him. When Awadallah asked to call his lawyer, the agents initially refused his request.- See supra Part II.B. Under these circumstances, a reasonable person in Awadallah’s situation would not have felt free to walk away or otherwise ignore the FBI agents. Awadallah was effectively seized. Because the government does not contend that the agents had probable cause to believe that Awadallah had committed any crimes, the seizure of Awadallah was unlawful. See Atwater, 532 U.S. at 354, 121 S.Ct. 1536 (holding that an officer may only arrest a person without a warrant if there is probable cause to believe the person has committed a felony or a crime in the officer’s presence). Any statements that Awadallah made are tainted by this unlawful arrest and must be suppressed. See supra Part IV.B.2. V. PERJURY TRAP In an earlier Opinion, this Court raised the issue of whether Awadallah was the victim of a perjury trap. See Awadallah II, 202 F.Supp.3d at - - -. The parties have now addressed this issue. After reviewing these submissions, I cannot conclude that the government violated defendant’s Fifth Amendment right to due process by setting a perjury trap. Some defenses, although graced with a name, seem to be illusory. “The recantation defense,” for example, “appears to be an illusion often asserted but never found.” Id. at -. The same can be said of “perjury trap.” In case after case, the courts in this Circuit have recognized that a perjury trap could theoretically exist but nonetheless found that “the facts of [the particular] case rendered] the perjury trap defense inapplicable.” United States v. Regan, 103 F.3d 1072, 1079 (2d Cir.1997) (citations and quotations omitted). See also" }, { "docid": "14460424", "title": "", "text": "in original) (emphasis added). . In fact, if Awadallah wanted to return home, he certainly could not have ignored the agents because he did not have a car at the office. Instead, he would have had to ask the agents to drive him back or, at the very least, ask their permission to use a phone in order to call for a ride home. It is also notable that the one time Awadallah did try to leave the interview room, he was not able to open the door. . According to the Government: “Awadallah made no statements during the few hours of his warrantless detention [after Agents Fortie and Vitkosky took custody of Awadallah], so no trial evidence can be said to be derived from the warrantless arrest, and his motion may be denied on that basis.” Gov’t Mem. at 56 (emphasis added). See also Reply Mem. at 5. . The same is true in other Circuits. See, e.g., Chen, 933 F.2d at 797 (\"We need not decide in this case whether to embrace the perjury trap doctrine. Here, the facts render the perjury trap defense inapplicable in any event.”). . Because the government thought, all along, that Awadallah knew the man’s name, it could have indicted him for lying to a federal official prior to his grand jury testimony. See 18 U.S.C. § 1001 (prohibiting giving materially false statements to federal officials). See also United States v. Schwarz, 283 F.3d 76, 110 (2d Cir.2002)." }, { "docid": "13425452", "title": "", "text": "but maintained otherwise before the grand jury. Thus, Brown argues, the United States overreached the grand jury’s purpose “to generate and sustain an improper inquiry” and any false declarations made were material only to that improper inquiry. Brown also asserts that the United States set a “perjury trap” by inviting him to testify before the grand jury again on December 10. Given our analysis of Section 1982, and our, conclusion that Patton’s and Armstrong’s actions constituted a federal crime under 18 U.S.C. § 241, Brown’s first argument is without merit. A federal grand jury has jurisdiction to investigate conduct that might have been a federal crime and that occurred within the jurisdiction of the federal court convening it. United States v. McInnis, 601 F.2d 1319, 1327 (5th Cir.1979), cert. denied, 445 U.S. 962, 100 S.Ct. 1649, 64 L.Ed.2d 237 (1980). Because the conduct being investigated was a federal crime, the grand jury’s inquiry here was proper. Further, Brown’s argument that the United States engaged in prosecutorial misconduct through a “perjury sting operation” is likewise unavailing. When testimony is elicited before a grand jury that is “attempting to obtain useful information in furtherance of its investigation”, United States v. Devitt, 499 F.2d 135, 140 (7th Cir.1974), cert. denied, 421 U.S. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466 (1975), or “conducting a legitimate investigation into crimes which had in fact taken place within its jurisdiction”, United States v. Chevoor, 526 F.2d 178, 185 (1st Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176 (1976), the perjury trap doctrine is, by definition, inapplicable. United States v. Chen, 933 F.2d 793, 797 (9th Cir.1991). Thus, we find Brown’s challenge unpersuasive. The grand jury had jurisdiction to investigate Brown’s conduct, and the United States did not set a “peijury trap.” III. Finally, Brown argues that the June 15,1990, search of his apartment violated his Fourth Amendment rights, although he states this by claiming error in the district court’s denial of his motion to return the seized property. He asserts that because the search warrant focused on Patton and his activities, the executing" }, { "docid": "14460403", "title": "", "text": "2001)(“In his attempt to persuade the Court that these grand jury appearances were a perjury trap, the Defendant argues that the Government ‘knew the answers to its questions’ We find this argument highly unpersuasive.”) (emphasis in original, citation omitted); United States v. Icardi, 140 F.Supp. 383, 388 (D.D.C.1956). But see United States v. Remington, 208 F.2d 567, 573 (2d Cir.1953) (Hand, J., dissenting) (“Save for torture, it would be hard to find a more effective tool of tyranny than the power of unlimited and unchecked ex parte examination.”). Recognizing the overwhelming weight of these authorities, I cannot find that the government’s conduct rose to the level of a legally cognizable “perjury trap.” Common sense, of course, might dictate otherwise. VI. CONCLUSION To summarize: 1. Because the arrest warrant was improvidently issued due to intentional misrepresentations and omissions, the grand jury testimony must be suppressed resulting in dismissal of the indictment. 2. All evidence and statements obtained from Awadallah during the encounters on September 20-21, 2001, must be suppressed because Awadallah was unlawfully seized and his consents were not voluntary. 3. The government did not set a perjury trap for Awadallah. SO ORDERED. . “Tr.” refers to the transcript of the hearing held on February 15 to 18, 2002. \"GX” refers to a Government exhibit at the hearing; \"[date] Tr.” refers to the transcript of court or grand jury proceedings op the indicated date. \"GJX” refers to a grand jury exhibit. \"Ber-man Aff.” refers to the Affirmation of Jesse Berman, Esq., dated December 3, 2001. \"Awadallah Aff.” refers to the Affidavit of Osama Awadallah, dated December 26, 2001. \"Gov’t Mem.” refers to the \"Government's Post Hearing Memorandum in Opoosition to Defendant’s Motions to Dismiss the Indictment and to Suppress the Evidence.” “Reply Mem.” refers to the Government’s Post-Hearing Reply Memorandum. \"Plunkett Aff.” refers to the affidavit submitted by Special Agent William Ryan Plunkett on September 21,2001. . \"There was [also] a gentleman from the ' California Department of Justice,” Tr. at 29 (Agent Alston testifying), \"[o]ne FBI support employee — a computer specialist,” id. at 226 (Agent Bedell testifying) and \"another" }, { "docid": "14460423", "title": "", "text": "from his home. Unlike the individuals in Torres and One Lot, Awadallah could not easily have walked away from the FBI office and thereafter ignored the police. See infra note 38. I do not hold that consensual encounters that move to police offices \"necessarily” result in a seizure. Rather, this Court’s holding rests upon the well-established proposition that when the police convey a message that compliance with their “request” is required, or otherwise restrain the liberty of the individual being questioned, the encounter is not consensual. . In concluding that the defendant was seized, the Second Circuit in Ceballos emphasized \"the agents’ omission of any statement conveying to Adames a choice in the matter.” 812 F.2d at 48. The court further commented that the Model Code recommends \"law enforcement officers 'take such steps as are reasonable under the circumstances to make clear that there is no legal obligation to comply [with a request to appear at a police station].' ” Id. at 48 n. 3 (citing Model Code of Pre-Arraignment Procedure § 110.1(3) (1975)) (alteration in original) (emphasis added). . In fact, if Awadallah wanted to return home, he certainly could not have ignored the agents because he did not have a car at the office. Instead, he would have had to ask the agents to drive him back or, at the very least, ask their permission to use a phone in order to call for a ride home. It is also notable that the one time Awadallah did try to leave the interview room, he was not able to open the door. . According to the Government: “Awadallah made no statements during the few hours of his warrantless detention [after Agents Fortie and Vitkosky took custody of Awadallah], so no trial evidence can be said to be derived from the warrantless arrest, and his motion may be denied on that basis.” Gov’t Mem. at 56 (emphasis added). See also Reply Mem. at 5. . The same is true in other Circuits. See, e.g., Chen, 933 F.2d at 797 (\"We need not decide in this case whether to embrace the" }, { "docid": "14498109", "title": "", "text": "a prosecutor conducts an investigation or asks particular questions of a witness “for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury.” Wheel, 34 F.3d at 67. See also United States v. Chen, 933 F.2d 793, 796-97 (9th Cir.1991) (“[Perjury trap] involves the government’s use of its investigatory powers to secure a pérjury indictment on matters which are neither material nor germane to a legitimate ongoing investigation of the grand jury. Such governmental conduct might violate a defendant’s fifth amendment right to due process, or be an abuse of grand jury proceedings.”) (citations omitted). At the same time, grand juries and prosecutors are afforded a wide degree of latitude in their investigations. Thus, a perjury indictment may not be dismissed if there exists a “legitimate basis” for the questions that were answered falsely. Regan, 103 F.3d at 1079. The facts of this case raise a question about whether the government had a legitimate basis for repeatedly asking the particular questions that it now accuses Awadallah of answering falsely. The prosecutors were fully aware that Awadal-lah could not remember the first and last name of every person he had met in the last three years. Indeed, Awadallah even forgot the names of people that he had mentioned in the interviews with the government in the .previous three weeks. When he did forget, the prosecutors reminded him of those interviews in an apparent effort to refresh his recollection. There has been no accusation that Awa-dallah was lying about his ability to remember those names during his grand jury testimony. Yet, when Awadallah did not. provide the name of Khalid Al-Mihdar the prosecutors made no effort to refresh Awadallah’s recollection despite the fact that they knew that there was an exami nation book in which Awadallah had written the word “Khalid.” Of course, the fact that the prosecutors knew about the examination booklet is not enough to show that the prosecution set a perjury trap. The prosecution is not required to disclose all (or even any) information to a grand jury witness. Nor is the government" }, { "docid": "22641233", "title": "", "text": "not yet recognized a so-called perjury trap as a valid defense, we have noted cases from other jurisdictions holding that the government violates due process when it “calls a witness before the grand jury with the primary purpose of obtaining testimony from him in order to prosecute him later for perjury.” See United States v. Chen, 933 F.2d 793, 796 (9th Cir.1991). The perjury trap doctrine has been applied in other jurisdictions only where the government used “its investigatory powers to secure a perjury indictment on matters which are neither material nor germane to a legitimate ongoing investigation of the grand jury.” Id. at 796. Thus, “[w]hen testimony is elicited before a grand jury that is attempting to obtain useful information in furtherance of its investigation, or conducting a legitimate investigation into crimes which had in fact taken place in its jurisdiction, the perjury trap doctrine is, by definition, inapplicable.” Id. at 797 (internal quotation marks and citations omitted). Here, the government did not use its investigatory powers to question McKenna before a grand jury. Rather, it merely questioned McKenna in its role as a defendant during the pendency of a civil action in which she was the plaintiff. The perjury trap doctrine is inapplicable to McKenna’s case for this reason. The dy namics of grand jury proceedings are substantially different from those in civil depositions and trials. A witness must face a prosecutor’s questions in federal grand jury proceedings without the presence of counsel. See United States v. Mandujano, 425 U.S. 564, 581, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976). Such a witness also “has an absolute duty to answer all questions, subject only to a valid Fifth Amendment claim.” Id. In a civil deposition a witness can be accompanied by her lawyer, who, within the confínes of the governing discovery rules, may object to questions and advise the witness not to answer on certain grounds. Furthermore, a lawful and common purpose in taking depositions is to catch a witness in a lie for impeachment use at trial. The role of the government as a civil defendant does not" }, { "docid": "23406732", "title": "", "text": "jury testimony would have been different if he had not been incarcerated, see Awadallah III, 202 F.Supp.2d at 81-82, the gravamen of the perjury charge — that Awadallah claimed that he did not recall the name of Al-Hazmi’s companion, Khalid AI-Midhar — was part of Awadallah’s statements to the agents who questioned him twenty days earlier, on September 20. As to the “purpose and flagrancy of the government’s misconduct,” Trzaska, 111 F.3d at 1027, for the reasons set forth in the majority opinion, I reject Awadallah’s repeated assertions that the “aim” of the government in arresting and detaining him was to get him to testify falsely before the grand jury. See ante at 75 (“[I]n light of all the circumstances, we think it is untenable to say that the FBI agents ... sought to elicit perjury rather than truthful information.”). On these facts, Awadallah’s argument that his grand jury testimony should be suppressed as the fruit of his unlawful arrest and detention is unavailing. Finally, Awadallah’s other argument for suppression of his grand jury testimony — his claim of a perjury trap — was properly rejected by the District Court. In summary, I join Part I, Parts II.A through II.C.2 and Part III of the Court’s opinion and I join my colleagues in reversing the judgment - of the District Court, reinstating the indictment and remanding for additional proceedings. As set forth above, however, I depart from my colleagues in their conclusion, in Part II.C.3, that a properly redacted and amended affidavit would be sufficient to satisfy the impracticability requirements of 18 U.S.C. § 3144. . In addition to excising the information obtained unlawfully on September 20 and 21, the majority elects to correct the alleged misstatements and omissions contained in the affidavit to demonstrate that \"even with ... [such] emendations,” see ante at 68, the Plunkett affidavit contained sufficient evidence to establish probable cause for Awadal-lah's arrest. As such, their modified affidavit contains two additional facts that favor Awa-dallah — namely (i) that the telephone number linking him to the slip of paper found in Al-Hazmi’s car was 18" }, { "docid": "14460399", "title": "", "text": "Wheel v. Robinson, 34 F.3d 60, 67-68 (2d Cir.1994)(“All of these cases recognized the possibility of a ‘perjury trap’ doctrine, but in each case the court concluded that the defendant’s due process rights were not violated.... We reach the same conclusion in this case, and accordingly do not decide whether the ‘perjury trap’ defense is available in the Second Circuit.”) (referring to United States v. Chen, 933 F.2d 793, 796-97 (9th Cir.1991); United States v. Simone, 627 F.Süpp. 1264, 1268 (D.N.J.1986); United States v. Crisconi, 520 F.Supp. 915, 920 (D.Del.1981); and United States v. Catalano, No. 92 CR. 1189, 1993 WL 183694, at *4 (S.D.N.Y. May 25, 1993)). This case is no exception to the long line of authorities cited. It cannot be said that there was no “legitimate basis” for this grand jury investigation, which was investigating the World Trade Center attacks. Regan, 103 F.3d at 1079 (quotation marks, citation omitted). Nor was the questioning unrelated to the purpose of the investigation. See Wheel, 34 F.3d at 67. The questioning of Awadallah focused on his acquaintance with two of the known hijackers and their activities during the time he knew them, which was approximately nine months prior to the hijacking. Answers to these questions could conceivably have advanced the investigation by providing leads as to other contacts or acquaintances of those hijackers, who might, in turn, have had pertinent information. While not legally sufficient to dismiss the indictment, the government’s motivation in calling Awadallah before the grand jury remains troubling. Awadallah had consistently told the authorities that he knew Al-Hazmi and he provided details of their encounters. He had also told the police that he had met another man in Al-Hazmi’s company on more than one occasion and provided a physical description of that other man. Moreover, because hearsay is admissible in a grand jury, the government could have had the FBI agents who interviewed Awadallah provide much of the same information to the grand jury. See Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956). Most importantly, Awadallah had consistently denied knowing" }, { "docid": "14460402", "title": "", "text": "to federal officials. Either way, this no-win, no-exit game would have little, if any, impact on the pending investigation. Regardless of the futility of the government’s questions or the dubiousness of its motives, courts have repeatedly held that such a situation does not constitute a “perjury trap.” See Chen, 933 F.2d at 798 (“[W]hile the government may have anticipated Chen would give false testimony before the grand jury, it is also apparent the government ‘recognized that [Chen] ... might provide information about the pending investigation.’ Indeed, the government had reason to expect that Chen would testify truthfully once placed in the solemn atmosphere of the grand jury room.”) (citation omitted); United States v. Chevoor, 526 F.2d 178, 185 (1st Cir.1975) (holding that although government expected Chevoor to perjure himself, it was not impermissible to call him to testify), abrogated on other grounds, Brogan v. United States, 522 U.S. 398, 118 S.Ct. 805, 139 L.Ed.2d 830 (1998); United States v. Bin Laden, No. S(7) 98 Cr. 1023, 2001 WL 30061, at *8, n. 15 (S.D.N.Y. Jan.2, 2001)(“In his attempt to persuade the Court that these grand jury appearances were a perjury trap, the Defendant argues that the Government ‘knew the answers to its questions’ We find this argument highly unpersuasive.”) (emphasis in original, citation omitted); United States v. Icardi, 140 F.Supp. 383, 388 (D.D.C.1956). But see United States v. Remington, 208 F.2d 567, 573 (2d Cir.1953) (Hand, J., dissenting) (“Save for torture, it would be hard to find a more effective tool of tyranny than the power of unlimited and unchecked ex parte examination.”). Recognizing the overwhelming weight of these authorities, I cannot find that the government’s conduct rose to the level of a legally cognizable “perjury trap.” Common sense, of course, might dictate otherwise. VI. CONCLUSION To summarize: 1. Because the arrest warrant was improvidently issued due to intentional misrepresentations and omissions, the grand jury testimony must be suppressed resulting in dismissal of the indictment. 2. All evidence and statements obtained from Awadallah during the encounters on September 20-21, 2001, must be suppressed because Awadallah was unlawfully seized and his" } ]

[ { "docid": "3238730", "title": "", "text": "After the parties engaged in discovery tailored to the issue of laches, Appellees filed a motion for summary judgment asserting that Mr. Lis-mont’s inventorship claim was barred by laches. The district court agreed and en tered judgment in favor of Appellees. Mr. Lismont filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1295(a)(1). Discussion “Laches is an equitable defense that may bar an inventorship claim.” Serdarevic v. Advanced Med. Optics., Inc., 532 F.3d 1352, 1358 (Fed.Cir.2008). To prevail on a defense of laches, a defendant must establish that (1) the plaintiffs delay in filing a suit was “unreasonable and inexcusable”; and (2) the defendant suffered “material prejudice attributable to the delay.” A.C. Aukerman v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1028 (Fed.Cir.1992) (en banc); see also SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 807 F.3d 1811, 1317 (Fed.Cir.2015) (en banc). Further, a rebuttable presumption of laches attaches whenever more than six years passes from the time a purportedly omitted inventor knew or should have known of the issuance of the relevant patent. Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 988 F.2d 1157, 1163 (Fed.Cir.1993); Serdarevic, 532 F.3d at 1358. This presumption of laches may be rebutted if the plaintiff “offer[s] evidence to show an excuse for the delay or that the delay was reasonable” or by offering “evidence sufficient to place the matters of defense prejudice and economic prejudice genuinely in issue.” Aukerman, 960 F.2d at 1038. Here, the district court concluded at the summary judgment stage that Mr. Lismont’s inventorship claim was barred by laches. We review the grant of summary judgment under the law of the regional circuit. Charles Mach. Works, Inc. v. Vermeer Mfg. Co., 723 F.3d 1376, 1378 (Fed.Cir.2013). The Fourth Circuit generally reviews the grant or denial of summary judgment de novo. See Myers v. Finkle, 950 F.2d 165, 167 (4th Cir.1991). Summary judgment is appropriate when “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). The issue of" } ]

[ { "docid": "22506172", "title": "", "text": "party's litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.\" Octane Fitness, LLC v. ICON Health & Fitness, Inc. , --- U.S. ----, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014). The party seeking fees must prove that the case is exceptional by a preponderance of the evidence, and the district court makes the exceptional case determination on a case-by-case basis considering the totality of the circumstances. See id. at 1756, 1758. We review a district court's grant or denial of attorneys' fees for an abuse of discretion, which is a highly deferential standard of review. Highmark Inc. v. Allcare Health Mgmt. Sys., Inc. , --- U.S. ----, 134 S.Ct. 1744, 1749, 188 L.Ed.2d 829 (2014) ; Bayer CropScience AG v. Dow AgroSciences LLC , 851 F.3d 1302, 1306 (Fed. Cir. 2017) (citing Mentor Graphics Corp. v. Quickturn Design Sys., Inc. , 150 F.3d 1374, 1377 (Fed. Cir. 1998) ). To meet the abuse-of-discretion standard, the appellant must show that the district court made \"a clear error of judgment in weighing relevant factors or in basing its decision on an error of law or on clearly erroneous factual findings.\" Bayer , 851 F.3d at 1306 (quoting Mentor Graphics , 150 F.3d at 1377 ); see also Highmark , 134 S.Ct. at 1748 n.2. District courts have often awarded attorneys' fees under § 285 following a finding of inequitable conduct, and this court has upheld such awards. See, e.g. , Taltech Ltd. v. Esquel Enters. Ltd. , 604 F.3d 1324, 1327, 1329, 1333 (Fed. Cir. 2010) ; Nilssen v. Osram Sylvania, Inc. , 528 F.3d 1352, 1358-59 (Fed. Cir. 2008) ; Bruno Indep. Living Aids, Inc. v. Acorn Mobility Servs., Ltd. , 394 F.3d 1348, 1350 (Fed. Cir. 2005) ; Brasseler, U.S.A. I, L.P. v. Stryker Sales Corp. , 267 F.3d 1370, 1386 (Fed. Cir. 2001). Many of these cases predate Therasense , where we heightened the standard for inequitable conduct. As we explained in Therasense , inequitable conduct requires specific intent to deceive, and \"to meet" }, { "docid": "3836394", "title": "", "text": "1756. The Supreme Court explained that “an ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Id. The Court eschewed a “precise rule or formula for making these determinations” and instructed that “equita ble discretion should be exercised ‘in light of the considerations we have identified.’ ” Id. (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)). Specifically, the Court cited a “‘nonexclusive’ list of ‘factors,’ including ‘frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.’ ” Id. at 1756 n.6 (quoting Fogerty, 510 U.S. at 534 n.19, 114 S.Ct. 1023). The Court further clarified that the applicable burden of proof for fee entitlement was the preponderance of the evidence standard and .not proof by “clear and convincing evidence.” Id. at 1758, In a second decision issued the same day, the Supreme Court held that Courts of Appeal should review a district court’s award of fees under the Patent Act for' abuse of discretion. Highmark Inc. v. All-care Health Mgmt. Sys., Inc., — U.S. —, 134 S.Ct. 1744, 1748-49, 188 L.Ed.2d 829 (2014). Following these decisions, the Third, Fourth, Fifth, and Sixth Circuits have recognized that Octane Fitness changed the standard for fee-shifting under the Lan-ham Act. Baker v. DeShong, 821 F.3d 620, 621-25 (5th Cir. 2016); Georgia-Pacific Consumer Prods., 781 F.3d at 720-21; Slep-Tone Entm’t Corp. v. Karaoke Kandy Store, Inc., 782 F.3d 313, 317-18 (6th Cir. 2015); Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 313-15 (3d Cir. 2014). Only the Second and Seventh Circuits have applied earlier case law to Lan-ham Act fee disputes, and both did so without mentioning Octane Fitness or Highmark. Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247, 265-66 (2d Cir. 2014); Burford v. Accounting Practice Sales, Inc., 786 F.3d 582, 588 (7th" }, { "docid": "20665158", "title": "", "text": "its motion for fees (“Supp.Mot.”) [Dkt. No. 234]; TWW’s opposition to Intex’s motion for fees, costs, and expenses (\"Opp.”) [Dkt. No. 235]; and Intex’s reply in support of its motion for fees, costs, and expenses (“Reply”) [Dkt. No. 236]. .For greater detail, see the Court’s September 24, 2013 Opinion and Order on claim construction and its March 10, 2014 Opinion on summary judgment. See Intex Rec. Corp. v. Team Worldwide Corp. (“Intex I”), Civil Action No. 04-1785(PLF), 42 F.Supp.3d 80, 2013 WL 5328372 (D.D.C. Sept. 24, 2013); Intex Rec. Corp. v. Team Worldwide Corp. (“Intex II\"), Civil Action No. 04-1785(PLF), 59 F.Supp.3d 28, 2014 WL 906105 (D.D.C. Mar. 10, 2014). . TWW also offers a laundry list of facts it believes show \"[t]he issues in this case do not even approach the level of being 'exceptionally meritless” Opp. at 6. Most are irrelevant, such as the number of pages of the Court’s summary judgment opinion, or the fact that TWW offered an expert supporting its arguments. Id. In any event, the Court disagrees. . In a decision issued the same day, the Supreme Court underscored this discretion by holding that \"the determination whether a case is 'exceptional' under § 285 ... is to be reviewed [by a court of appeals] only for abuse of discretion.” Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., - U.S. -, 134 S.Ct. 1744, 1748, 188 L.Ed.2d 829 (2014) (footnote omitted)." }, { "docid": "13989888", "title": "", "text": "its motion to amend the complaint to cure the temporal deficiency and erroneously declined to exercise supplemental jurisdiction over its state-law claims against the Duhamels and JED Realty (Counts III and IV). The Fund- thus asks this court to vacate the denial of its motion for post-judgment relief. II. A. Standard of Review As both parties observe, a district court’s ruling on a post-judgment motion under either Rule 59(e) or Rule 60(b) ordinarily is reviewed for abuse of discretion. See Guadalupe-Báez v. Pesquera, 819 F.3d 509, 518 & n.4 (1st Cir. 2016) (Rule 59(e)); Giroux v. Fed. Nat’l Mortg. Ass’n, 810 F.3d 103, 106 (1st Cir. 2016) (Rule 60(b)). Here, however, the Fund asserts that we should apply de novo -review to the district court’s denial of post-judgment relief because that decision stemmed- from the court’s misreading of ERISA law. We agree that this appeal turns on a question of law—whether the Fund’s alter ego claims give rise to federal subject-matter jurisdiction—and that we do not defer to the district court if we detect a legal error in its reasoning. See Guadalupe-Báez, 819 F.3d at 518 (Rule 59(e)); Un- gar v. Palestine Liberation Org., 599 F.3d 79, 83 (1st Cir. 2010) (Rule 60(b)(6)); see also Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., — U.S. —, 134 S.Ct. 1744, 1748 n.2, 188 L.Ed.2d. 829 (2014) (“The abuse-of-discretion standard does not preclude an appellate court’s correction of a district court’s legal or factual error: ‘A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.’ ” (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990))). Accordingly, we turn to our review of the applicable law. We briefly describe our general approach to the alter ego doctrine in the ERISA context before considering the ease law discussing whether, and when, a federal action may be brought against an asserted alter ego based on a previously entered judgment against the signatory ERISA employer. B. ERISA Alter" }, { "docid": "13222124", "title": "", "text": "February 16, 2008 and September 19, 2016, for a total award of $248,203.22.” J.A. 2302. Although Reliance concedes that Ms. Marcin is now totally disabled under its Policy — and indeed, unable to work in any occupation — the insurer maintains that Ms. Marcin was ineligible for benefits under its Policy when she stopped working in 2008. Reliance thus appeals four rulings from the District Court: (1) September 19, 2016 Final Judgment for Ms. Marcin in the amount of $248,203.22, along with prejudgment interest and attorney’s fees of $72,240; (2) August 4, 2016 Memorandum Opinion and Order awarding disability benefits to Ms. Marcin at $2,409.74 per month; (3) October 14, 2015 Memorandum Opinion denying Reliance’s motion for summary judgment and entering judgment in favor of Ms. Marcin; and (4) April 14, 2015 Memorandum Opinion and Order denying Reliance’s motion for summary judgment and remanding the claim for further action. Appellant Br. i-ii. This Court has jurisdiction to hear the appeal pursuant to 28 U.S.C. § 1291. II. Our review of this case is governed by the interplay of two separate standards. First, we review de novo the District Court’s decision to grant summary judgment. Grimes v. District of Columbia, 794 F.3d 83, 88-89 (D.C. Cir. 2015); Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006). Because this Court analyzes the District- Court’s judgment, not its reasoning, we may affirm on any ground properly raised. EEOC v. Aramark Corp., 208 F.3d 266, 268 (D.C. Cir. 2000). Summary judgment is appropriate if there is no genuine issue of material fact, and judgment can be granted as a matter of law. Fed. R. Civ. P. 56(a). In assessing a summary judgment motion, the Court must view all facts and evidence in the light most favorable to the nonmoving party. Arrington, 473 F.3d at 333; Carter v. George Wash. Univ., 387 F.3d 872, 878 (D.C. Cir. 2004). Summary judgment will only be granted if no reasonable jury could find for the nonmoving party. See Jones v. Bernanke, 557 F.3d 670, 674 (D.C. Cir. 2009); Carter, 387 F.3d at 878. To survive a" }, { "docid": "21781949", "title": "", "text": "35 U.S.C. § 285 and to award Sedecal a total of $2,315,000 in attorneys’ fees. [Doc. 225]. Pursuant to the Patent Act, the Court may make an award of reasonable attorneys’ fees to the prevailing party “in exceptional cases.” 35 U.S.C. § 285. As it is a matter unique to patent law, the determination of a fee award pursuant to § 285 is governed by Federal Circuit law. Digeo, Inc. v. Audible, Inc., 505 F.3d 1362, 1366 (Fed. Cir. 2007). As the Supreme Court has recently explained, “an ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Octane Fitness, LLC v. ICON Health & Fitness, Inc., — U.S. —, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014). Whether a case is “exceptional” is a matter within the court’s discretion, considering the totality of the circumstances. Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., — U.S. —, 134 S.Ct. 1744, 1748, 188 L.Ed.2d 829 (2014). Even in the exceptional case, the decision to award attorneys’ fees and the amount thereof are still matters within the Court’s sound discretion. MarcTec, LLC v. Johnson & Johnson, 664 F.3d 907, 916 (Fed. Cir. 2012) (“If the district court finds that the case is exceptional, it must then determine whether an award of attorney fees is justified.”). In the present case, the Court need not determine whether the case is exceptional because even if the Court were to make such a determination, Sedecal has failed to prove that its claimed fees—which are in excess of two million dollars—are reasonable. “In calculating an attorney fee award, a district court usually applies the lodestar method, which provides a presumptively reasonable fee amount, by multiplying a reasonable hourly rate by the reasonable number of hours required to litigate a comparable case.” Lumen View Tech. LLC v. Findthebest.com, Inc., 811 F.3d 479, 483 (Fed. Cir. 2016) (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S." }, { "docid": "19781216", "title": "", "text": "in June 2015, filed a motion under Rule 56(d) of the Federal Rules of Civil Procedure asking the court to defer the consideration of summary judgment in order for him to supplement his response with additional discovery. According to the motion, Tennial wished to depose three managerial-level UPS employees regarding incidents that had happened after the filing of the defendants’ motion for summary judgment. The defendants filed a response opposing Tennial’s motion, claiming in part that the information that he sought to discover was irrelevant to his claims. In November 2015, the district court granted the defendants’ motion for summary judgment and denied Tennial’s Rule 56(d) Motion. Following this decision, the defendants filed a Bill of Costs with the Clerk of Court, seeking to recover permissible costs due the prevailing party under Rule 54 (d)(1) of the Federal Rules of Civil Procedure. Tennial objected, arguing that the court should use its discretion and refuse to tax costs against him because the costs sought were-unreasonable and unjustified. In February 2016, despite Tennial’s objections, the Clerk awarded costs to the defendants in the amount- of $8,921.30. This timely appeal followed. ANALYSIS A. Standard of review We review de novo a district court’s grant of summary judgment. Watson v. Cartee, 817 F.3d 299, 302 (6th Cir. 2016). Summary judgment is proper when no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making this assessment, we must view all evidence in the light most favorable to the nonmov-ing party. McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir. 2016). The denial of a Rule 56(d) request for additional discovery, on the other hand, is reviewed using the abuse-of-discretion standard. Ball v. Union Carbide Corp., 385 F.3d 713, 720 (6th Cir. 2004). “An abuse of discretion occurs when" }, { "docid": "21805853", "title": "", "text": "in camera declaration. Min. Order (Aug. 8, 2016). The Court ultimately ordered defendant to file part of the in camera submission on the public docket, Min. Order (Aug. 25, 2016), and defendant submitted a redacted version of the August 15, 2016. See Redacted Decl. of Michael Franklin [Dkt. # 47] (“Redacted Franklin Decl.”). STANDARD OF REVIEW In a FOIA case, the district court reviews the agency’s decisions de novo and “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “FOIA cases are typically and appropriately decided on motions for summary judgment.” Moore v. Bush, 601 F.Supp.2d 6, 12 (D.D.C. 2009). 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). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted). The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is capable of affecting the outcome of the litigation. Id. at 248, 106 S.Ct. 2505; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the" }, { "docid": "19493651", "title": "", "text": "prevent CAI from speaking because it is a corporation, (id. ¶¶ 64-72); (4) its right to due process under the Fourteenth Amendment on the ground that the UPL Statutes are vague, (id. ¶¶ 73-82); (5) its right to free speech on the ground that the UPL Statutes prohibit CAI from advertising its proposed legal services, (id. ¶¶ 83-91); and (6) the Monopoly Clause of the North Carolina Constitution, (id. ¶¶ 92-99). On February 16, 2015, CAI sought a preliminary injunction, requesting that the Court enjoin State Prosecutors from taking any action that would interfere with CAI offering or delivering legal advice and services to its members through CAI attorneys licensed to practice law. (ECF No. 19 at 1.) State Prosecutors moved to dismiss CAI's claims. (ECF No. 10.) The Court heard oral arguments on the motions on May 29, 2015. On September 4, 2015, this Court entered a Memorandum Opinion and Order (\"Preliminary Injunction Order\"), denying CAI's motion for a preliminary injunction, and denying State Prosecutors' motion to dismiss. Capital Associated Indus., Inc. v. Cooper , 129 F.Supp.3d 281, 308 (M.D.N.C. 2015). State Prosecutors later moved for judgment on the pleadings, and the Court entered an Order that denied that motion. Capital Associated Indus., Inc. v. Cooper , No. 1:15CV83, 2016 WL 6775484, at *2 (M.D.N.C. June 23, 2016). Each Party has now moved for summary judgment. (ECF Nos. 100, 103, 112.) II. LEGAL STANDARD Summary judgment is appropriate when \"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 dispute is \"genuine\" if the evidence would permit a reasonable jury to find for the nonmoving party, and \"[a] fact is material if it might affect the outcome\" of the litigation. Jacobs v. N.C. Admin. Office of the Courts , 780 F.3d 562, 568 (4th Cir. 2015) (quotations omitted). The role of the court is not \"to weigh the evidence and determine the truth of the matter\" but rather \"to determine whether there is a genuine issue for" }, { "docid": "7307267", "title": "", "text": "use to execute petitioners calls for the administration of 500 milligrams of midazolam followed by a paralyt ic agent and potassium chloride. The paralytic agent may be pancuronium bromide, vecuronium bromide, or rocuronium bromide, three drugs that, all agree, are functionally equivalent for purposes of this case.”). We affirmed the judgment in Phillips in November 2016 and now address the instant discovery dispute. Phillips v. DeWine, 841 F.3d 405, 432 (6th Cir.2016). II. Under Federal Rule of Civil Procedure 26(c)(1), a district court may grant a protective order preventing the production of discovery to protect a party or entity from “annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). We review the grant of a protective order for abuse of discretion. Serrano v. Cintas Corp., 699 F.3d 884, 899-900 (6th Cir. 2012). “The abuse-of-discretion standard does not preclude an appellate court’s correction of a district court’s legal or factual error: ‘A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.’” Highmark Inc. v. Allcare Health Mgmt. Sys., — U.S. —, 134 S.Ct 1744, 1748 n.2, 188 L.Ed.2d 829 (2014) (quoting Cooter & Gell v. Hartman Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). To that end, “in reviewing a trial court’s evidentiary determinations, this court reviews de novo the court’s conclusions of law and reviews for clear error the court’s factual determinations that underpin its legal conclusions.” United States v. Ganier, 468 F.3d 920, 925 (6th Cir. 2006) (citation omitted). III. Plaintiffs argue that the protective order prevents the prosecution of their federal and state causes of action. Plaintiffs maintain that the protective order is contrary to law because the order cuts off all discovery on Ohio’s execution procedures, including previously produced discovery. They contend that the otherwise barred discovery would assist in identifying the suppliers or manufacturers of Ohio’s legal-injection drugs as well as anyone related to carrying out executions in Ohio. Plaintiffs impugn the sufficiency of unknown laboratories using unknown testing" }, { "docid": "3836395", "title": "", "text": "convincing evidence.” Id. at 1758, In a second decision issued the same day, the Supreme Court held that Courts of Appeal should review a district court’s award of fees under the Patent Act for' abuse of discretion. Highmark Inc. v. All-care Health Mgmt. Sys., Inc., — U.S. —, 134 S.Ct. 1744, 1748-49, 188 L.Ed.2d 829 (2014). Following these decisions, the Third, Fourth, Fifth, and Sixth Circuits have recognized that Octane Fitness changed the standard for fee-shifting under the Lan-ham Act. Baker v. DeShong, 821 F.3d 620, 621-25 (5th Cir. 2016); Georgia-Pacific Consumer Prods., 781 F.3d at 720-21; Slep-Tone Entm’t Corp. v. Karaoke Kandy Store, Inc., 782 F.3d 313, 317-18 (6th Cir. 2015); Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 313-15 (3d Cir. 2014). Only the Second and Seventh Circuits have applied earlier case law to Lan-ham Act fee disputes, and both did so without mentioning Octane Fitness or Highmark. Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247, 265-66 (2d Cir. 2014); Burford v. Accounting Practice Sales, Inc., 786 F.3d 582, 588 (7th Cir. 2015). We agree with the majority of our sister circuits and conclude that Octane Fitness and Highmark have altered the analysis of fee applications under the Lanham Act, Therefore, district courts analyzing a request for fees under, the Lan-ham Act should examine the “totality of the. circumstances” to determine if the case was exceptional, Octane Fitness, 134 S.Ct. at 1756, exercising equitable discretion in light of the nonexclusive factors identified in Octane Fitness and Fogerty, and using a preponderance of the evidence standard. Pursuant to Highmark, our review of the district court’s - decision on fees -awarded under the Lanham.Act is for abuse of discretion. 134 S.Ct. at 1748-49. We overrate our precedent to the contrary. With this correction in the law, we return control of the case to the three-judge panel for resolution of the remaining issues presented by the case. REMANDED." }, { "docid": "15547040", "title": "", "text": "termination violated the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (FMLA); the Americans with Disabilities Act, 42 U.S.C. § 1210HADA); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; 42 U.S.C. § 1981; the Thirteenth Amendment; and the Wisconsin Fair Employment Act, Wis. Stat. §§ 111.31-111.395 (WFEA). The district court had proper jurisdiction over the WFEA claims under 28 U.S.C. § 1367. On June 23, 2005, the court granted summary judgment for Waste Management. Pursuant to Fed. R. Civ. P. 59(e), 60(b), Anders made a “Motion to Alter and Amend Judgment and Relief from Judgement and Order.” The district court denied his motion on August 29, 2005. This appeal followed. Anders argues now that there were genuine issues of material fact as to each of his claims. II. Analysis We review the district court’s grant of summary judgment de novo, construing all facts and drawing all reasonable inferences in favor of the nonmoving party. Tanner v. Jupiter Realty Corp., 433 F.3d 913, 915 (7th Cir.2006). Summary judgment is appropriate if the moving party demonstrates “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are facts that “might affect the outcome of the suit” under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party opposing summary judgment may not rest upon mere allegations or denials contained in their pleadings; instead, it is incumbent upon them to introduce affidavits or other evidence setting forth specific facts showing a genuine issue for trial. See, e.g., Williams v. Seniff, 342 F.3d 774, 785 (7th Cir.2003); see also Johnson v. University of Wisconsin-Eau Claire, 70 F.3d 469, 478 (7th Cir. 1995). A. Race Discrimination We examine first Anders’s claim that Waste Management fired him on the basis of race. This portion of our review includes his arguments for relief under Title VII, § 1981, and the WFEA. At the" }, { "docid": "5538540", "title": "", "text": "Accordingly, we affirm the district court’s determination that claims 10-19 are invalid as indefinite. II. Patent Eligibility In patent appeals, we apply the law of the regional circuit, here the Seventh Circuit, to issues not unique to patent law. AbbVie Deutschland GmbH & Co., KG v. Janssen Biotech, Inc., 759 F.3d 1285, 1295 (Fed. Cir. 2014). The Seventh Circuit reviews a grant of summary judgment de novo, drawing all reasonable inferences -in the light most favorable to the non-movant. Arnett v. Webster, 658 F.3d 742, 757 (7th Cir. 2011). Summary judgment is appropriaté when, “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). Patent eligibility under 35 U.S.C. § 101 is ultimately an issue of law we review de novo. Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1338 (Fed. Cir. 2017). The patent eligibility inquiry may contain underlying issues of' fact. Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1325 (Fed. Cir. 2016). First, we address whether Mr. Berkheimer waived his ability to argue that the dependent claims are separately patent eligible. Courts may treat a claim as representative in certain situations, such as if the patentee does not present any meaningful argument for the distinctive significance of any claim limitations not found in the representative claim or if the parties agree to treat a claim as representative. Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1352 (Fed. Cir. 2016); Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1316 &. n.9 (Fed. Cir. 2016). Because Mr. Berkheimer maintained that limitations included in dependent claims 4-7 bear on patent eligibility and never agreed to make claim 1 representative, we hold that arguments going specifically to claims 4-7 are properly preserved on appeal. Mr. Berkheimer never agreed to make claim 1 representative. In his opposition brief to HP’s motion for summary judgment, he argued that claim 1 is not representative of the limitations found in the dependent claims. J.A. 1280. In" }, { "docid": "19493652", "title": "", "text": ", 129 F.Supp.3d 281, 308 (M.D.N.C. 2015). State Prosecutors later moved for judgment on the pleadings, and the Court entered an Order that denied that motion. Capital Associated Indus., Inc. v. Cooper , No. 1:15CV83, 2016 WL 6775484, at *2 (M.D.N.C. June 23, 2016). Each Party has now moved for summary judgment. (ECF Nos. 100, 103, 112.) II. LEGAL STANDARD Summary judgment is appropriate when \"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 dispute is \"genuine\" if the evidence would permit a reasonable jury to find for the nonmoving party, and \"[a] fact is material if it might affect the outcome\" of the litigation. Jacobs v. N.C. Admin. Office of the Courts , 780 F.3d 562, 568 (4th Cir. 2015) (quotations omitted). The role of the court is not \"to weigh the evidence and determine the truth of the matter\" but rather \"to determine whether there is a genuine issue for trial.\" Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). \"If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.\" Id. at 249-50, 106 S.Ct. 2505 (citations omitted). When reviewing a motion for summary judgment, the court must \"resolve all factual disputes and any competing, rational inferences in the light most favorable\" to the nonmoving party. Rossignol v. Voorhaar , 316 F.3d 516, 523 (4th Cir. 2003). When, as here, a court has before it cross-motions for summary judgment, \"the court must review each motion separately on its own merits\" to determine whether each party is entitled to judgment as a matter of law. Id. III. DISCUSSION State Prosecutors have moved for summary judgment on jurisdictional grounds and on CAI's right of association claim only. (ECF No. 100.) CAI and the State Bar have each moved for summary judgment on each of the six claims brought by CAI. (ECF Nos. 103, 112.) As State Prosecutors raise the threshold issue of whether" }, { "docid": "13483619", "title": "", "text": "attorneys’ fees, expert witness fees, deposition costs, process server fees and the like, of approximate[ly] $1.2 million.” Id., ¶ 87. This action has been bifurcated into separate liability and damages phases, pursuant to this Court’s Order of December 22, 2016 (ECF No. 25). Additionally, the parties have resolved the issue of indemnification, so the only remaining issues as to liability are whether or not Gemini owed Earth Treks a defense in the Fabian Suit and, if so, whether Gemini’s liability was limited by either the SAM or A & B endorsements. See January 25, 2017 Status Report, ¶ 5, ECF No. 26. The parties have filed cross-motions for summary judgment (ECF Nos. 19 & 27) as to those questions. STANDARD OF REVIEW Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “A dispute is genuine if ‘a reasonable jury could return a verdict for the nonmoving party.’” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012)). A material fact is one that “might affect the outcome of the suit under the governing law.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue over a material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Where, as here, the parties have filed cross-motions for summary judgment, this Court “must consider each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Bacon v. City of Richmond, 475 F.3d 633, 637-38 (4th Cir. 2007) (internal quotation marks omitted). “ ‘Both motions must be denied if the court finds that there is a genuine dispute" }, { "docid": "10145690", "title": "", "text": "The trial on Updike’s criminal charge was postponed until April 22, 2013. After the jury was impaneled, the district attorney moved for dismissal. B On September 13, 2013, Updike filed his complaint, alleging claims against the City of Gresham, Multnomah County, and the State of Oregon. In early 2014, the City of Gresham settled. On June 1, 2014, Updike filed his first amended complaint. Updike brought several claims: ADA discrimination claims against the State and the County, violations of § 504 of the Rehabilitation Act against the State and the County, common law negligence against the State and the County, and false arrest against the County. He sought compensatory damages, injunctive relief, and attorneys’ fees and costs. The State filed its motion for summary judgment on April 23, 2014, which the district court granted on October 15, 2014. The County filed its motion for summary judgment on November 26, 2014, which the district court granted on March 24, 2015. The district entered final judgment on March 24,2015. Updike timely appealed. He does not challenge the grant of summary judgment on his negligence and false arrest claims. II We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s grant of summary judgment. Gonzales v. CarMax Auto Superstores, LLC, 840 F.3d 644, 648 (9th Cir. 2016). On review, we determine—viewing the evidence in the light most favorable to Updike, the non-moving 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); see Fed. R. Civ. P. 56. “Summary judgment is improper if ‘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.’ ” Simo v. Union of Needletrades, Indus. & Textile Emps., 322 F.3d 602, 610 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). We review de novo the district court’s decision regarding" }, { "docid": "19535006", "title": "", "text": "of disgorgement to the 17 jurisdictions in which Variety owns stores and competed with Walmart, (2) allowing Walmart to deduct SG&A costs, and (3) denying its request for a jury trial to determine additional non-disgorgement damages. Walmart cross-appeals by arguing that the district court erred in: (1) granting partial summary judgment in Variety's favor, (2) ordering disgorgement of profits, and (3) awarding costs and attorneys' fees to Variety. II. \"We review a district court's grant of summary judgment de novo.\" Lee v. Town of Seaboard , 863 F.3d 323, 327 (4th Cir. 2017). Although, in ordinary cases, we would only briefly discuss the applicable standard of review, \"[w]hen 'the opinion below reflects a clear misapprehension of summary judgment standards,' ... further elaboration is warranted.\" Jacobs v. N.C. Admin. Office of the Courts , 780 F.3d 562, 568 (4th Cir. 2015) (quoting Tolan v. Cotton , --- U.S. ----, 134 S.Ct. 1861, 1868, 188 L.Ed.2d 895 (2014) (per curiam) ). A correct application of the Rules is especially important in a protracted civil action such as this one, in which subsequent proceedings are closely intertwined with the disposition of the summary judgment motion. Under Rule 56(a), \"[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.\" Fed. R. Civ. P. 56(a). \"A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party,\" and \"[a] fact is material if it might affect the outcome of the suit under the governing law.\" Jacobs , 780 F.3d at 568 (internal quotation marks omitted). Thus, at the summary judgment phase, \"[t]he pertinent inquiry is whether '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.' \" Reyazuddin v. Montgomery Cty., Md. , 789 F.3d 407, 413 (4th Cir. 2015) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). Once" }, { "docid": "1659065", "title": "", "text": "HHS referenced the statute's budget-neutrality requirement, noting that it had not reduced payments to other hospitals in 2011 to account for an increase for the 2011 calendar year. See id. C. Moffitt's Challenge Moffitt's fiscal year ends on June 30. See Compl. ¶ 30. Therefore, HHS's determination not to make a cancer-hospital adjustment for the 2011 calendar year affected Moffitt's 2011 and 2012 fiscal years. See id. Moffitt received notices of program reimbursement for those fiscal years in September 2012 and September 2013, respectively. JA at 17, 22. Moffitt appealed those notices to the Provider Reimbursement Review Board. JA at 16, 21. It argued, among other things, that HHS had improperly refused to apply the cancer-hospital adjustment to the 2011 calendar year. JA at 13-15, 18-20. The Review Board concluded that Moffitt's appeals were timely, but that it lacked authority to resolve the legal issue of Moffitt's entitlement to a retroactive adjustment under Section 3138 of the ACA. JA at 5. The Board granted expedited judicial review of that question. Id. In November 2016, Moffitt filed this action against HHS seeking review under the Administrative Procedure Act (\"APA\"), 5 U.S.C. § 551 et seq. Compl. ¶ 11. It seeks an order declaring HHS's final rule invalid insofar as it delayed the effective date of the adjustment to January 1, 2012, and directing HHS to pay Moffitt an appropriate retroactive adjustment (estimated to be $7.4 million) plus interest. See id. ¶¶ 6, 41. The parties then filed the instant motions for summary judgment. ECF Nos. 13, 16. II. Legal Standard A court must grant summary judgment \"if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.\" Fed. R. Civ. P. 56(a). \"[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal.\" Am. Bioscience, Inc. v. Thompson , 269 F.3d 1077, 1083 (D.C. Cir. 2001). \"The 'entire case' on review is a question of law.\" Id. \"Summary judgment thus serves as the mechanism for deciding, as" }, { "docid": "10154124", "title": "", "text": "ATTORNEY’S FEES Dr. Barry seeks a finding that this case is exceptional and an award of attorney’s fees in the amount of $5,532,762, pursuant to 35 U.S.C. § 285. The court finds that this case is not exceptional and denies Dr. Barry’s motion for attorney’s fees. A. Legal Framework “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U.S.C. § 285. “[A]n exceptional case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Octane Fitness, LLC v. ICON Health & Fitness, — U.S. -, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014). “Factors that a court may consider include frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the cases) and the need in particular circumstances to advance considerations of compensation and deterrence.” Arthrex, Inc. v. Smith & Nephew, Inc., Case No. 2:15-cv-01047-RSP, 2017 WL 365239, at *1 (E.D. Tex. Jan. 25, 2017) (citing Octane, 134 S.Ct. at 1756 n.6). Litigants must establish their entitlement by a preponderance' of the evidence. Octane, 134 S.Ct. at 1758. The determination is to ' be made on a case-by-case basis, considering the totality of the circumstances. Id. at 1756. “[T]héfe is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the considerations.” Id. at 1756. The determination falls squarely within the discretion of the court. Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., — U.S. -, 134 S.Ct. 1744, 1756, 188 L.Ed.2d 829 (2014); see also Eon-Net LP v. Flagstar Bancorp, 653 F.3d 1314, 1324 (Fed. Cir. 2011) (“[W]e are mindful that the district court has lived with the case and the lawyers for an extended period.”). A\" willfulness finding does not necessarily make a case exceptional. See Stryker Corp. v. Zimmer, Inc., 837 F.3d 1268, 1279 (Fed. Cir. 2016) (affirming jury’s willfulness finding but remanding for lower court’s consideration of attorney’s fees," }, { "docid": "19600880", "title": "", "text": "Vessel since \"it never assumed title or possession of the bunkers, it never obligated itself to pay the actual physical supplier, and it never supplied the bunkers.\" See id. at *3. Concluding that a provider of necessaries must have taken on some risk in the transaction, the District Court denied O.W. Denmark's claim for a maritime lien because it was \"steps removed from the physical provision of bunkers and never ... had a tangible financial risk with regard to them[.]\" See id. at *6 ; id. at *7 (\"The case law does not support awarding a maritime lien in a non-risk-and therefore non-protective-circumstance.\"). After denying ING's motion for partial summary judgment, the District Court sua sponte -and without giving ING notice or an opportunity to respond-entered summary judgment against ING and in favor of the Vessel, even though the Vessel had not moved for summary judgment. Subsequently, ING moved for reconsideration and sought to supplement that factual record with additional information in order to complete the contractual links missing from its original motion. The District Court denied the motion without entertaining further submissions or briefing. Order, ING Bank N.V. v. M/V TEMARA , No. 16-cv-95 (S.D.N.Y. Nov. 28, 2016), ECF Dkt. 181. This appeal followed. STANDARD OF REVIEW We review a district court's grant of summary judgment de novo . Process Am., Inc. v. Cynergy Holdings, LLC , 839 F.3d 125, 133 (2d Cir. 2016). \"Summary judgment is proper 'if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.' \" Id. (quoting Fed. R. Civ. P. 56(a) ). We construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. June v. Town of Westfield , 370 F.3d 255, 257 (2d Cir. 2004). DISCUSSION A maritime lien is a \"special property right in the vessel, arising in favor of the creditor by operation of law as security for a debt or claim,\" which \"arises when the debt arises[.]\" Itel Containers Int'l Corp. v. Atlanttrafik" } ]

[ { "docid": "22948328", "title": "", "text": "75 of the New York Civil Service Law would require notice and hearing. Here we are concerned only with economic demotions which do not involve any exercise of discretion. Appellees are under a statutory mandate. Absent a claim that the seniority computation is based on erroneous factual premises, there is nothing which a hearing would elucidate. In such a situation, it would border on the absurd to hold that appellants may be denied procedural due process, especially in light of the uniform interpretation of Arnett, supra, that a post-termination evidentiary hearing is generally sufficient to protect interests in one’s employment meriting due process protection. See Eley v. Morris, supra, 390 F.Supp. at 920, and cases cited therein. See also Mathews v. Eldridge, supra, 424 U.S. at 334, 96 S.Ct. at 902, 47 L.Ed.2d at 32, 44 U.S.L.W. at 4229. Since none of the appellants has as yet been demoted and none therefore has been denied a post-demotion hearing, we need not reach any question pertaining to the requirement of such a hearing in the facts of a particular case. Appellants’ two-pronged equal protection claim is equally without merit. Their first argument is that demotion on the basis of civil service seniority will produce a greater adverse impact upon employees of black and other minority groups than would demotion on the basis of seniority determined by tenure in position. This claim is insubstantial on its face because it does not allege why or how the current system would result in greater hardship to minorities than would the former system. Complaints relying on the civil rights statutes are plainly insufficient unless they contain some specific allegations of fact indicating a deprivation of civil rights, rather than state simple conclusions. Powell v. Jervis, 460 F.2d 551, 553 (2d Cir. 1972); Kauffman v. Moss, 420 F.2d 1270, 1275 (3d Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); Powell v. Workmen’s Compensation Board of the State of New York, 327 F.2d 131, 137 (2d Cir. 1964). Since no such facts are alleged here, this claim was properly dismissed. Appellants also" } ]

[ { "docid": "22586902", "title": "", "text": "Named as defendants, though not parties to this appeal, were David Faulkner, his mother Dolores, and the police officers who had allegedly entered and rampaged through Fine’s apartment. Fine’s complaint also named Assistant District Attorneys Kahn and Gaudelli, the City of New York, and attorneys Klein and Kornberg. On November 22, 1974, Judge Brieant granted motions to dismiss the complaint made pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim against defendants Kahn, Gaudelli, Klein and Kornberg. He also dismissed, sua sponte, the complaint against the City of New York. From these dismissals Fine appeals. II. Section 1983 requires the fulfillment of certain conditions before a plaintiff may prevail. First, the plaintiff must prove that the defendant has deprived him of a right secured by the “Constitution and laws” of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.” This second element requires that the plaintiff show that the defendant acted “under color of law.” Adickes v. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Moreover, the party against whom recovery is sought must be a “person” within the meaning of the Civil Rights Act, and not be cloaked with immunity. KAHN AND GAUDELLI. Fine recited in his civil rights complaint against the prosecutors that Kahn had presented evidence, later suppressed, to a grand jury. Gaudelli, he alleged, presented other evidence to a subsequent grand jury. He also stated, in most conclusory terms, that they had wrongfully withheld his property, suborned perjury, tampered with and coerced witnesses, hindered criminal prosecution, and committed other wrongful acts. No details were offered, however, in support of these claims. Complaints relying upon 42 U.S.C. § 1981 et seq. are plainly insufficient unless they contain at least some allegations of facts indicating a deprivation of civil rights. Powell v. Jarvis, 460 F.2d 551, 553 (2d Cir. 1970). See also Birnbaum v. Trussell, 347 F.2d 86, 89-90 (2d Cir. 1965); Powell v. Workmen’s Compensation Bd., 327" }, { "docid": "5383700", "title": "", "text": "of the offense for which he was arrested. Broughton v. State, 37 N.Y.2d [451] at 458, 373 N.Y.S.2d [87] at 95, 335 N.E.2d [310] at 315 [ (1975) ]; Harper & James § 4.11, at 345; id. § 4.12, at 346. This rule “represents -the compromise between two conflicting interests of the highest order — the interest in personal liberty and the interest in apprehension of criminals,” id. § 3.18, at 275, and constitutes a refusal as a matter of principle to permit any inference that the arrest of a person thereafter adjudged guilty had no reasonable basis. The law enforcement officer is given this protection because he “has a duty to the public to prevent crime and arrest criminals; the performance of these duties would be seriously impaired unless peace officers were given considerable discretion in their performance and protected from liability for the consequences of honest and reasonable mistakes.” Restatement § 121, comment g- Id. at 387-88. This reasoning is questionable as applied to actions under § 1983 as opposed to state-law torts. Whatever an arrestee’s common-law right may have been previously, 42 U.S.C. § 1983, originally § 1 of the Civil Rights Act of 1871, was enacted under the Fourteenth Amendment for the purpose of forcing state officers to accord citizens “due process of law,” which came to include the guarantees of the Fourth Amendment. “The very purpose of § 1983 was to interpose the federal courts between, the States and' the people, as guardians of the people’s federal rights — to protect the people from unconstitutional action under color of state law....” Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972). “Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these faihngs extended to the state courts.” Id. Protecting police officers from liability for" }, { "docid": "6761873", "title": "", "text": "not received any rulings on their constitutional claims in state court. Thus the third element for Younger abstention has not been established. This Court denies Defendants motions to dismiss the Smith Plaintiffs’ claims under § 1983 on the ground of abstention. F. Anti-Injunction Act Defendants further claim that, even if the action was not barred by the Rooker-Feldman and Younger doctrines, it would nevertheless be barred by the Anti-Injunction Act, 28 U.S.C. § 2283, which states: A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. 22 U.S.C. § 2283. Defendants argue that the Second Amended Complaint, though couched in terms of a declaratory judgment action, is in effect an action to stay proceedings in the Oakland County Court and, therefore, is barred by § 2283. The Court finds that, even if it accepts Defendants assertion as true, the action is still maintainable. The Supreme Court has held that § 1983, under which the Second Amended Complaint is brought, is an exception to § 2283 explicitly authorized by Congress: The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal rights — to protect the people from unconstitutional action under color of state law, ‘whether that action be executive, legislative, or judicial.’ Ex parte Virginia, 100 U.S., [339] at 346, 25 L.Ed. 676 [(1879)]. In carrying out that purpose, Congress plainly authorized the federal courts to issue injunctions in § 1983 actions, by expressly authorizing a ‘suit in equity’ as one of the means of redress... § 1983 is an Act of Congress that falls within the ‘expressly authorized’ exception of [§ 2283], Mitchum v. Foster, 407 U.S. 225, 242-43, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). Accordingly, because the Second Amended Complaint was brought pursuant to § 1983, the Anti-Injunction Act does not mandate its dismissal. G. Title 42 U.S.C. § 1985 The Smith Plaintiffs’" }, { "docid": "6761874", "title": "", "text": "Supreme Court has held that § 1983, under which the Second Amended Complaint is brought, is an exception to § 2283 explicitly authorized by Congress: The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal rights — to protect the people from unconstitutional action under color of state law, ‘whether that action be executive, legislative, or judicial.’ Ex parte Virginia, 100 U.S., [339] at 346, 25 L.Ed. 676 [(1879)]. In carrying out that purpose, Congress plainly authorized the federal courts to issue injunctions in § 1983 actions, by expressly authorizing a ‘suit in equity’ as one of the means of redress... § 1983 is an Act of Congress that falls within the ‘expressly authorized’ exception of [§ 2283], Mitchum v. Foster, 407 U.S. 225, 242-43, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). Accordingly, because the Second Amended Complaint was brought pursuant to § 1983, the Anti-Injunction Act does not mandate its dismissal. G. Title 42 U.S.C. § 1985 The Smith Plaintiffs’ claim of a conspiracy to deprive them of civil rights also alleges a violation of 42 U.S.C. § 1985, an independent right of action separate and distinct from that of § 1983. Title 42 U.S.C. § 1985 states in pertinent part: If two or more persons in any State or Territory conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators. 42 U.S.C." }, { "docid": "749436", "title": "", "text": "agent that would give rise to liability under state law if committed by a private individual. See Birnbaum v. United States, 588 F.2d 319 (2nd Cir.1978). Compliance with the latter requirement would give this court subject matter jurisdiction pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. Id. at 322. We have already discussed above the lack of coherence that characterizes plaintiff’s complaint. Although this court has tried to discern the basis for plaintiff’s action, we find it impossible to do so. Moreover, in the Second Circuit complaints based on the conspiracy provisions of the Civil Rights Statutes cannot rest on vague or conclusory allegations but must “allege with at least some degree of particularity overt acts which defendants engaged in which were reasonably related to the promotion of the alleged conspiracy.” Powell v. Workmen’s Compensation Board, 327 F.2d 131, 137 (2nd Cir.1964); see Koch v. Yunich, 533 F.2d 80, 85 (2nd Cir.1975); Fine v. New York, 529 F.2d 70, 74 (2nd Cir.1975); Powell v. Jarvis, 460 F.2d 551, 553 (2nd Cir.1972). The same standard has also been applied to suits against federal officials involving so called “Bivens” claims based on causes of action arising directly under the Constitution. Ostrer v. Aronwald, 567 F.2d 551 (2nd Cir.1977); Black v. United States, 534 F.2d 524 (2nd Cir.1976). In Ostrer v. Aronwald, supra, the court stated that “complaints containing only ‘vague’, or ‘general allegations’ of a conspiracy to deprive a person of constitutional rights will be dismissed. Diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct.” Id. at 553. (Citations omitted). Plaintiff’s complaint in the instant action fails to provide enough particularity to state a cause of action for alleged violations of the Constitution. The original complaint makes no specific reference to the F.B.I. It does not allege any actions by the F.B.I. The amended complaint contains only the following reference to the F.B.I.: (f) ... Charly Glasser was also the “Star Informer” to the F.B.I., Media, press and others. He also had wiretapped my telephone and residence along with the telephones and residence of my" }, { "docid": "749435", "title": "", "text": "the heart of the claim do not comport with [the goals of the federal system]; such complaints must be dismissed.” Prezzi v. Berzak, 57 F.R.D. 149 (S.D.N.Y.1972); accord Prezzi v. Schelter, 469 F.2d 691 (2nd Cir.1972) (“the complaint contained a labyrinthian prolixity of unrelated and vituperative charges that defied comprehension”). The instant complaints are examples of the type described in Prezzi v. Berzak, supra. The complaints violate F.R. Civ.P. 8(a) and must therefore be dismissed. II. LACK OF SUBJECT MATTER JURISDICTION OYER CLAIM AGAINST THE F.B.I. An action brought pursuant to 42 U.S.C. § 1983 cannot lie against federal officers. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339 (2nd Cir.1972) (on remand). In order for this court to have jurisdiction over the instant action, plaintiff must allege either (1) a direct violation of her rights under the Constitution, see Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) or (2) a tort committed by a federal agent that would give rise to liability under state law if committed by a private individual. See Birnbaum v. United States, 588 F.2d 319 (2nd Cir.1978). Compliance with the latter requirement would give this court subject matter jurisdiction pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. Id. at 322. We have already discussed above the lack of coherence that characterizes plaintiff’s complaint. Although this court has tried to discern the basis for plaintiff’s action, we find it impossible to do so. Moreover, in the Second Circuit complaints based on the conspiracy provisions of the Civil Rights Statutes cannot rest on vague or conclusory allegations but must “allege with at least some degree of particularity overt acts which defendants engaged in which were reasonably related to the promotion of the alleged conspiracy.” Powell v. Workmen’s Compensation Board, 327 F.2d 131, 137 (2nd Cir.1964); see Koch v. Yunich, 533 F.2d 80, 85 (2nd Cir.1975); Fine v. New York, 529 F.2d 70, 74 (2nd Cir.1975); Powell v. Jarvis, 460 F.2d 551, 553 (2nd Cir.1972). The" }, { "docid": "18346179", "title": "", "text": "1979, a hearing was held before Judge Fuchs in the Brooklyn Criminal Court. Over objections of the Assistant District Attorney, Judge Fuchs dismissed all four counts “in the interests of justice” pursuant to Section 170.40 of the New York State Criminal Procedure Law. The dismissal was ordered by Judge Fuchs because he had determined that even if Ms. Greene were found guilty on all four counts, he would not sentence her to any additional time since Ms. Greene has already been incarcerated for 100 days pending trial. II. The Law A. Conspiracy The requirements for a cause of action under 42 U.S.C. § 1985 are twofold. First, the plaintiff must establish that there was a conspiracy to violate her constitutional rights. Second, that there be some racial or other class-based discriminatory animus behind the conspirators’ actions. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971); Morpurgo v. Board of Education in City of New York, 423 F.Supp. 704, 711 (S.D.N.Y.1976). The plaintiff’s complaint is devoid of any such allegations. All that is presented are vague and conclusory statements concerning some ubiquitous conspiracy in which Detective Brown is alleged to be a member. Such statements are insufficient to state a claim under the civil rights laws. Griffin v. Breckenridge, 403 U.S. at 102, 91 S.Ct. at 1798; Powel v. Jarvis, 460 F.2d 551, 553 (2d Cir. 1972); Morpurgo v. Board of Higher Education in City of New York, 423 F.Supp. at 711. Judge Weinfeld’s findings in Morpurgo are equally applicable here: Although plaintiff has made some minimal effort to set forth the interrelationships of the alleged co-conspirators and the parameters of the conspiracy, she has done so by way of freewheeling and speculative allegations and has failed ... to allege any facts that could give rise to a reasonable inference of a conspiracy. Id. (footnotes omitted). B. The Police Department The complaint reflects no Police Department policy, regulation or custom which can be said to have violated the rights of the plaintiff. With respect to a City or a municipal department, the plaintiff must plead" }, { "docid": "22272999", "title": "", "text": "altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts.... The very purpose of § 1983 was to interpose the federal courts between the States and the people, as the guardians of the people’s federal rights—to protect the people from unconstitutional action under color of state law....” Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). Applying a presumption of probable cause in a section 1983 action on the sole basis of a municipal conviction that has subsequently been overturned undermines one of the Civil Rights Act’s raisons d’etre, i.e., to interpose the federal courts, as guardians of federal rights, between the authority of the states and the people. Accord Heck, 512 U.S. at 496, 114 S.Ct. 2364 (Souter, J., concurring)(discussing generally the Restatement rule and noting that the Court disclaims the “untenable” position that a conviction “wipes out a person’s § 1983 claim for damages for unconstitutional conviction or posteonviction confinement.”). B. In the absence of a presumption of probable cause arising from the municipal conviction, the issue of whether De Simone had probable cause to stop and arrest Montgomery rests entirely upon the credibility of the witnesses. According to Montgomery, she had only had one drink on the night in question and could not have been exceeding the speed limit. In addition, Montgomery alleges that De Simone lied at her trial and that his motive for arresting her was unrelated to either her speed or her alleged intoxication. Taking all of Montgomery’s allegations as true and resolving all inferences in her favor as we must, we find that a reasonable jury could conclude that De Simone did not have probable cause to stop or to arrest Montgomery. Montgomery therefore has raised a genuine issue of material fact as to probable cause and summary judgment on her section" }, { "docid": "5383701", "title": "", "text": "Whatever an arrestee’s common-law right may have been previously, 42 U.S.C. § 1983, originally § 1 of the Civil Rights Act of 1871, was enacted under the Fourteenth Amendment for the purpose of forcing state officers to accord citizens “due process of law,” which came to include the guarantees of the Fourth Amendment. “The very purpose of § 1983 was to interpose the federal courts between, the States and' the people, as guardians of the people’s federal rights — to protect the people from unconstitutional action under color of state law....” Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972). “Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these faihngs extended to the state courts.” Id. Protecting police officers from liability for the consequences of “honest and reasonable mistakes” is a legitimate concern, but the common-law bar by conviction is absolute, not a qualified immunity that looks to the arresting officer’s state of mind, it conflicts with the purpose of § 1983. As such The court in Cameron took the position that the common-law rule does not undermine the statutory goals of granting compensation for the loss of civil rights and deterring public officials from further violations. According to Cameron, a conviction means that the plaintiff had no right to avoid arrest, his arrest without probable cause was merely “premature,” and that the resulting injury is “insubstantial.” Any injury flowing from the use of evidence improperly seized in connection with the arrest would be addressed by the exclusionary rule. On the deterrent side, the exclusionary rule is a sufficient deterrent to arrests lacking probable cause. Cameron, 806 F.2d at 388. Like the court in Rose v. Bartle, we question the policy determinations underlying Cameron. Cameron noted the deterrent of the exclusionary rule, which threatens to free the" }, { "docid": "7133367", "title": "", "text": "Lee v. Willins, 617 F.2d 320 (2d Cir.), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); Cerbone v. County of Westchester, 508 F.Supp. 780 (S.D.N.Y.1981). FOURTH AMENDMENT CLAIMS The balance of plaintiff’s complaint makes broad accusations against police officers of the City of New York, seeking relief under 42 U.S.C. § 1983. The purpose of this statute, however, was “to interpose the federal courts between the states and the people, as guardians of the people’s federal rights — to protect the people from unconstitutional action under color of state law, ...” Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972). But to prevent the proliferation of vague and wholesale allegations, encouraging the redress of imagined wrongs, the Second Circuit has long endorsed a requirement of specificity in en tertaining such complaints. Powell v. Jarvis, 460 F.2d 551 (2d Cir.1972). See also Koch v. Yunich, 533 F.2d 80 (2d Cir.1976). In' Powell, a pro se plaintiff accused a detective, responsible for his arrest and conviction for manslaughter, of conspiracy to deny him his freedom and Constitutional rights. In affirming the District Court’s dismissal of the complaint, the Circuit Court described it as a “hodgepodge of vague and conclusory allegations.” Powell v. Jarvis, supra, 460 F.2d at 553. No choice of words could better describe the complaint before the court today. Even if all the plaintiff’s allegations are true, he fails on the face of the complaint to state a cause of action as required by the Federal Rules of Civil Procedure. Such actions on the part of the police and District Attorney’s office as an arrest based on information provided by an informant, or the prosecution at trial of a duly-indicted criminal defendant, describe no more than the carrying out of their lawful duties. The plaintiff’s expectation that Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) endorses his complaint and insures it against dismissal is mistaken. If that were the ruling of Haines, any pro se plaintiff could come forward with a set of equivocal allegations," }, { "docid": "12154537", "title": "", "text": "HAYS, Circuit Judge: Jacob Powell appeals from an order of the United States District Court for the Southern District of New York dismissing his complaint for damages and injunctive relief under the civil rights statutes, 42 U.S.C. § 1981 et seq. (1970). We affirm. Powell’s complaint arises from the circumstances surrounding his arrest and conviction for manslaughter in the Supreme Court of New York, Bronx County. An appeal from this conviction is pending in the state courts. Powell alleges that on December 17, 1968, in the course of investigating a murder committed December 13, 1968, Detectives Jarvis and Barrett of the New York Police Department forcefully detained him and interrogated him, and commanded him to call them if he heard anything about the murder, threatening him with imprisonment if he failed to comply. Powell reported to Jarvis the next day, December 18, that he had no information. No incriminating statements or other evidence against Powell resulted from these activities. Sometime during February, 1969, defendant Gamble apparently identified Powell as one of the murderers by choosing his picture from among several shown her. Powell claims that this identification was suggestive; however the core of his claim against Miss Gamble is that in testifying against him before the grand jury that indicted him, and at the trial at which he was convicted, she was committing perjury in furtherance of a conspiracy to deprive him of his freedom. Detective Jarvis is alleged to have “signed a false affidavit Feb. 18, 1969,” “committed an assault upon the Plaintiff,” “committed an abduction on the Plaintiff,” and “conspired [with Miss Gamble] from the very beginning to deprive Plaintiff of his civil and constitutional rights.” The nature of the allegedly false affidavit nowhere appears; the “assault” and “abduction” presumably refer to Powell’s temporary detention described above. The complaint sought damages and an injunction against the further prosecution of the indictment against him. Powell is presently serving his sentence. Miss Gamble answered the complaint, denying the material allegations that applied to her, and Jarvis moved to dismiss the complaint for failure to state a claim upon which relief" }, { "docid": "7272709", "title": "", "text": "narratives.”); Crumpacker v. Civiletti, 90 F.R.D. 326, 330 (N.D.Ind.1981) (criticizing the plaintiffs’ “buckshot method of pleading” in a civil rights case as placing an “ 'urdue burden on the court and [opposing] counsel to determine how plaintiff is here and why.’ ”); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir.1984) (“Even under the so-called notice rules of pleading, the complaint must state a cause of action sufficient to affirmatively show the plaintiff is entitled to relief____ In civil rights and conspiracy actions, courts have recognized that more than mere conclusory notice pleading is required. In civil rights actions, it has been held that a complaint will be dismissed as insufficient where the allegations it contains are vague and conclusory.”); Sell v. Barner, 586 F.Supp. 319, 321 (E.D.Pa.1984) (“It is axiomatic that a civil rights complaint must be pleaded with specificity sufficient to provide fair notice to defendants of the substance of plaintiff’s claims and the grounds upon which they rest____ Where a complaint ‘relies on vague and conclusory allegations [it] does not provide “fair notice” and will not survive a motion to dismiss.' ... Neither the defendants nor the Court can be required to piece together in jigsaw fashion the factual allegations with which plaintiff intends to support his claims.”); Armstead v. Town of Harrison, 579 F.Supp. 777, 781 n. 23 (S.D.N.Y.1984) (“Conley v. Gibson [355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80] ... does not relieve plaintiff of alleging the essential elements of a claim under § 1983, and the District Court is not obliged to rewrite a faulty complaint in order to save it from a motion to dismiss.”); Howard v. Koch, 575 F.Supp. 1299, 1303-04 (E.D.N.Y.1982) (“[T]o prevent the proliferation of vague and wholesale allegations, encouraging the redress of imagined wrongs, the Second Circuit has long endorsed a requirement of specificity in entertaining [§ 1983] complaints.”). The plaintiff failed to allege a single fact from which it could be inferred that he did not commit the vandalism as charged by the two private citizen complainants and that the police officers at the station somehow should" }, { "docid": "11791012", "title": "", "text": "These motions will also be considered with respect to the amended complaint. No motions to dismiss have been filed by the other defendants in this action. In considering the instant motions to dismiss under Rule 12(b)(6), the Court accepts all material allegations in the amended complaint as true, and construes them liberally in favor of the plaintiffs. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). It has often been said that a complaint should only be dismissed if it appears that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). However, the Court is mindful of the rule that a plaintiff relying upon 42 U.S.C. § 1983 (“§ 1983\") must include in his or her complaint at least some allegations of facts indicating a deprivation of civil rights. Fine v. City of New York, 529 F.2d 70, 73 (2d Cir. 1975); Powell v. Jarvis, 460 F.2d 551, 553 (2d Cir. 1972). As plaintiffs are now represented by counsel, the usual rule that the pleading requirements are considerably more relaxed for plaintiffs proceeding pro se, see Williams v. Vincent, 508 F.2d 541, 543 (2d Cir. 1974), is inapplicable. A. Defendant Daronco Defendant Hon. Richard Daronco was, during the events described in the amended complaint, a County Judge of Westchester County, State of New York. The amended complaint charges defendant Daronco with committing certain improprieties in the course of presiding over the above-described criminal trial of Luis Gutierrez. Amended Complaint at ¶¶ 18-19. Defendant Daronco’s Rule 12(b)(6) motion to dismiss the amended complaint is based on the doctrine of judicial immunity. It is well established that judges of courts of general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978). This doctrine" }, { "docid": "18346180", "title": "", "text": "All that is presented are vague and conclusory statements concerning some ubiquitous conspiracy in which Detective Brown is alleged to be a member. Such statements are insufficient to state a claim under the civil rights laws. Griffin v. Breckenridge, 403 U.S. at 102, 91 S.Ct. at 1798; Powel v. Jarvis, 460 F.2d 551, 553 (2d Cir. 1972); Morpurgo v. Board of Higher Education in City of New York, 423 F.Supp. at 711. Judge Weinfeld’s findings in Morpurgo are equally applicable here: Although plaintiff has made some minimal effort to set forth the interrelationships of the alleged co-conspirators and the parameters of the conspiracy, she has done so by way of freewheeling and speculative allegations and has failed ... to allege any facts that could give rise to a reasonable inference of a conspiracy. Id. (footnotes omitted). B. The Police Department The complaint reflects no Police Department policy, regulation or custom which can be said to have violated the rights of the plaintiff. With respect to a City or a municipal department, the plaintiff must plead facts which show that a City or departmental policy or custom directly caused the plaintiff’s constitutional violations. Dominguez v. Beame, 603 F.2d 337, 341 (2d Cir. 1979), cert. denied, 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980). See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978) (“the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution”) (emphasis added). In its recent examination of municipal liability under § 1983 in light of Monell, the Second Circuit enunciated the following two-pronged test which is applicable to the instant action: [I]n order for a governmental entity to be liable “for its own violations, ... the plaintiff in a § 1983 action bears the burden of showing first that the governmental entity maintained or practiced an unconstitutional or unlawful “policy” or “custom,” . .. and second that that policy or custom “caused” or" }, { "docid": "18925592", "title": "", "text": "reserve the defendants. See Fed.R.Civ.P. 4(h). 3. Adequacy of Claims Under the Civil Rights Act (the “Act”) The defendants also move to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the grounds that each of plaintiffs’ causes of action under the Act, 42 U.S.C. §§ 1981, 1983, 1985, and 2000d (1976 & Supp. V 1981), rests on vague and conclusory allegations that are insufficient to state a legal claim. In considering this argument, the Court must accept all material allegations in the amended complaint as true and construe them liberally in favor of the plaintiffs. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1973); Gutierrez v. Vergari, 499 F.Supp. 1040, 1046 (S.D.N.Y.1980). The general rule is that a complaint should be dismissed only if it appears that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The Second Circuit, however, has noted that a plaintiff bringing claims under the Civil Rights Act must include in the complaint some allegations of fact indicating a deprivation of civil rights. See Koch v. Yunich, 533 F.2d 80, 85-86 (2d Cir.1976); Fine v. City of New York, 529 F.2d 70, 73 (2d Cir.1975); Powell v. Jarvis, 460 F.2d 551, 553 (2d Cir.1972). Applying this criterion to the instant action, we conclude that the plaintiffs have failed to allege facts sufficient to state a claim under either section 1985 or Title VI. a. 42 U.S.C. § 1985 A complaint alleging a conspiracy under section 1985 must “set forth with certainty facts showing particularly what a defendant or defendants did to carry the conspiracy into effect, whether such acts fit within the framework of the conspiracy alleged, and whether such acts, in the ordinary course of events, would proximately cause injury to the plaintiff.” Martin Hodas, East Coast Cinematics, Inc. v. Lindsay, 431 F.Supp. 637, 643-44 (S.D.N.Y.1977) (quoting Hoffman v. Halden, 268 F.2d 280, 295 (9th Cir.1959)). In the instant" }, { "docid": "12154538", "title": "", "text": "his picture from among several shown her. Powell claims that this identification was suggestive; however the core of his claim against Miss Gamble is that in testifying against him before the grand jury that indicted him, and at the trial at which he was convicted, she was committing perjury in furtherance of a conspiracy to deprive him of his freedom. Detective Jarvis is alleged to have “signed a false affidavit Feb. 18, 1969,” “committed an assault upon the Plaintiff,” “committed an abduction on the Plaintiff,” and “conspired [with Miss Gamble] from the very beginning to deprive Plaintiff of his civil and constitutional rights.” The nature of the allegedly false affidavit nowhere appears; the “assault” and “abduction” presumably refer to Powell’s temporary detention described above. The complaint sought damages and an injunction against the further prosecution of the indictment against him. Powell is presently serving his sentence. Miss Gamble answered the complaint, denying the material allegations that applied to her, and Jarvis moved to dismiss the complaint for failure to state a claim upon which relief could be granted. The district judge dismissed the complaint as to both defendants and, construing the request for injunctive relief as a habeas corpus petition, denied it “for failure to exhaust state remedies as well as for failure to present a federal constitutional claim.” Powell’s handwritten complaint, which contains much eonclusory and extraneous material, invokes, inter alia, 42 U.S.C. §§ 1981-83 and 1985-87 (1970) in support of his claim. At the outset it is clear that Powell is entitled to no injunctive relief. The defendants are not his custodians, and are not taking any action against him nor threatening to take such action. Powell’s claims for damages under the civil rights statutes were also properly dismissed. The complaint is a hodgepodge of vague and conclusory allegations. No facts are presented which would be sufficient to support his claims. Complaints relying upon 42 U. S.C. 1981 et seq. are plainly insufficient unless they contain at least some allegations of facts indicating a deprivation of civil rights. See Birnbaum v. Trussell, 347 F.2d 86, 89-90 (2d Cir." }, { "docid": "7133366", "title": "", "text": "(2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). In light of Howard’s failure to allege that Koch, Santucci, or Gold was personally involved in the alleged wrongs, plaintiffs claims against these defendants must be dismissed. The liability of the Assistant District Attorneys charged in the complaint are clearly barred by prosecutional immunity. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Fine v. City of New York, 529 F.2d 70 (2d Cir. 1975). A prosecutor acting as an advocate in a criminal procedure is immune from liability, and charges against him must be dismissed if he was acting within his official capacity. The policy behind this is to prevent the inhibition of judicial proceedings. Nothing in the plaintiff’s complaint persuades this court that the Assistant District Attorneys were acting outside of their official prosecutorial duties, or in violation of this policy. Accordingly, the claims against the Assistant District Attorneys are dismissed. See Imbler v. Pachtman, supra; Taylor v. Kavanagh, 640 F.2d 450 (2d Cir. 1981); Lee v. Willins, 617 F.2d 320 (2d Cir.), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); Cerbone v. County of Westchester, 508 F.Supp. 780 (S.D.N.Y.1981). FOURTH AMENDMENT CLAIMS The balance of plaintiff’s complaint makes broad accusations against police officers of the City of New York, seeking relief under 42 U.S.C. § 1983. The purpose of this statute, however, was “to interpose the federal courts between the states and the people, as guardians of the people’s federal rights — to protect the people from unconstitutional action under color of state law, ...” Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972). But to prevent the proliferation of vague and wholesale allegations, encouraging the redress of imagined wrongs, the Second Circuit has long endorsed a requirement of specificity in en tertaining such complaints. Powell v. Jarvis, 460 F.2d 551 (2d Cir.1972). See also Koch v. Yunich, 533 F.2d 80 (2d Cir.1976). In' Powell, a pro se plaintiff accused a detective, responsible for his arrest and conviction for" }, { "docid": "18925593", "title": "", "text": "however, has noted that a plaintiff bringing claims under the Civil Rights Act must include in the complaint some allegations of fact indicating a deprivation of civil rights. See Koch v. Yunich, 533 F.2d 80, 85-86 (2d Cir.1976); Fine v. City of New York, 529 F.2d 70, 73 (2d Cir.1975); Powell v. Jarvis, 460 F.2d 551, 553 (2d Cir.1972). Applying this criterion to the instant action, we conclude that the plaintiffs have failed to allege facts sufficient to state a claim under either section 1985 or Title VI. a. 42 U.S.C. § 1985 A complaint alleging a conspiracy under section 1985 must “set forth with certainty facts showing particularly what a defendant or defendants did to carry the conspiracy into effect, whether such acts fit within the framework of the conspiracy alleged, and whether such acts, in the ordinary course of events, would proximately cause injury to the plaintiff.” Martin Hodas, East Coast Cinematics, Inc. v. Lindsay, 431 F.Supp. 637, 643-44 (S.D.N.Y.1977) (quoting Hoffman v. Halden, 268 F.2d 280, 295 (9th Cir.1959)). In the instant case, however, the amended complaint fails to meet these requirements. It contains nothing more than generalized, unsupported allegations and simple conclusions, which do not describe the parameters of a conspiracy. See Morpurgo v. Board of Higher Education, 423 F.Supp. 704, 711 (S.D.N.Y.1976) (dismissing section 1985 claim because plaintiff’s vague, conclusory, and imprecise allegations failed to provide defendants with fair notice of the charges against them). No facts are alleged from which a reasonable inference of conspiracy could be drawn. Indeed, the word “conspiracy” is not even mentioned. Thus, although the plaintiffs are correct in their statement that section 1985 is designed to protect against conspirators’ actions that are motivated by a “class-based, invidiously discriminatory animus,” the plaintiffs have not alleged the essential elements of a section 1985 conspiracy. See Rios v. Marshall, 530 F.Supp. 351, 362 (S.D.N.Y.1981). There is an additional ground for dismissing the plaintiffs’ section 1985 claim. It is not a claim that is distinct from one that could be raised under Title VII, 42 U.S.C. § 2000e (1976). See Great American Federal" }, { "docid": "7133368", "title": "", "text": "manslaughter, of conspiracy to deny him his freedom and Constitutional rights. In affirming the District Court’s dismissal of the complaint, the Circuit Court described it as a “hodgepodge of vague and conclusory allegations.” Powell v. Jarvis, supra, 460 F.2d at 553. No choice of words could better describe the complaint before the court today. Even if all the plaintiff’s allegations are true, he fails on the face of the complaint to state a cause of action as required by the Federal Rules of Civil Procedure. Such actions on the part of the police and District Attorney’s office as an arrest based on information provided by an informant, or the prosecution at trial of a duly-indicted criminal defendant, describe no more than the carrying out of their lawful duties. The plaintiff’s expectation that Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) endorses his complaint and insures it against dismissal is mistaken. If that were the ruling of Haines, any pro se plaintiff could come forward with a set of equivocal allegations, and compel the defendant to undergo the expense and ordeal of a full trial. This is not the aim of Fed.R.Civ.P. 8, which is designed to protect defendants from undefined charges, and to keep the federal courts free of frivolous suits. Nonetheless, the court for procedural reasons chooses not to dismiss the complaint on the merits, but dismisses the complaint without prejudice on abstention grounds. As noted, Howard has not yet been sentenced on the Kings County conviction, and is still awaiting trial in Queens County. Were this court to allow this action to proceed, it would clearly be violating a basic tenet of federalism which bars federal involvement or interference in pending state court criminal proceedings. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In this case any Fourth Amendment violations could bear directly on the constitutionality of the state court convictions. Accordingly, considerations of comity compel this court to dismiss Howard’s complaint without prejudice as any action that could be taken could call into question the validity" }, { "docid": "18700042", "title": "", "text": "courts require in section 1983 actions that the plaintiff allege, “with factual and legal specificity, the ‘civil rights or constitutional guarantee safeguarding the interest he asserts has been invaded.’ ” Levine v. Town of West Hartford Police Dept., 541 F.Supp. 741, 743 (D.Conn.1982) (quoting Paul v. Davis, 424 U.S. 693, 700, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976)). “Complaints relying upon 42 U.S.C. § 1981 et seq. are plainly insufficient unless they contain at least some allegations of facts indicating a deprivation of civil rights.” Fine v. City of New York, 529 F.2d 70, 73 (2d Cir.1975); see also, Powell v. Jarvis, 2nd Cir., 460 F.2d 551 (1972). Plaintiff has failed in his complaint to allege any facts establishing a deprivation of his civil rights by defendants. Plaintiff, who was arrested pursuant to a warrant, does not allege anywhere in his complaint that his arrest under Section 53a-157 was without probable cause. The court cannot construe as true allegations that are not contained in the complaint. Rather surprisingly, plaintiff’s lawyer states in his briefs that plaintiff alleges arrest without probable cause and for the purpose of punishing protected first amendment rights. The complaint, however, only states that the charges were dismissed by the state court. In false arrest cases the innocence of the defendant is irrelevant. “The Constitution does not guarantee that only the guilty will be arrested.” Baker v. McCollan, 443 U.S. at 145, 99 S.Ct. at 2694. Plaintiff alleges that the defendants have adopted and implemented an official municipal policy of seeking to chill the exercise by citizens of protected first amendment rights. This policy is said to consist of threatening with arrest, and occasionally arresting, on charges of making false statements, citizens who file complaints with the Hartford Police Department concerning misconduct by police officers. Plaintiff alleges that his arrest was the result of this policy and was obtained by the defendants for the specific purpose of punishing him for exercising rights guaranteed to him under the first and fourteenth amendments to the United States Constitution. Furthermore, plaintiff alleges that his arrest was designed to discourage" } ]

[ { "docid": "7580872", "title": "", "text": "recent years. See, e.g., Paine-Webber, Inc. v. Bybyk, 81 F.3d 1193, 1202 (2d Cir.1996); FSC Sec. Corp. v. Freel, 14 F.3d 1310, 1312-13 (8th Cir.1994) (language of section 35 indicates that parties “clearly and unmistakably” wanted questions of arbitra-bility to be decided by arbitrator). This court adopted a different approach to section 35 in Sorrells, where the question was whether the court should conclude that section 15 of the NASD Code (now Rule 10304) imposes an absolute bar to arbitration for claims more than six years old, or if arbitrators should decide what its effect would be. See Sorrells, 957 F.2d at 514 n. 6, which quoted section 35 and commented that: we do not believe that this provision is a clear and unmistakable expression of the parties’ intent to have the arbitrators, and not the court, determine which disputes the parties have agreed to submit to arbitration. Id. Other courts have agreed with us. See Smith Barney, Inc. v. Sarver, 108 F.3d 92, 96-97 (6th Cir.1997); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cohen, 62 F.3d 381, 384 (11th Cir.1995). The Flumes have urged us to reconsider our conclusion in Sorrells, or at a minimum to distinguish limitations-of-actions cases arising under section 15 from cases arising under other provisions of the Code. With all due respect to the courts that have taken the other position, we are not inclined to revisit Sorrells in the present case. First Options, which was decided after Sorrells, approved our requirement of a showing of “clear and unmistakable” evidence that the parties intended to have the arbitrators decide the preliminary issue of arbitrability. Section 35 says nothing about arbitrability; it instead empowers the arbitrators to “interpret and determine the applicability of all provisions under this Code.” However, both interpretation and determinations about applicability are steps that take place after the threshold determination of arbitrability has occurred; or, at the very least, section 35 can reasonably be read that way. Even if it would not do violence to the language of section 35 to conclude that arbitrability may also be resolved by the arbitrators," } ]

[ { "docid": "6206234", "title": "", "text": "(remanding the case to the district court to decide whether the collective bargaining agreement allowed arbitration of a particular labor dispute). The Supreme Court explained the applicable standards in First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), where it held that “[j]ust as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, so the question ‘who has the primary power to decide arbitrability’ turns upon what the parties agreed about that matter.” 514 U.S. at 943, 115 S.Ct. 1920 (citations omitted). The First Options Court also noted, however, the particular difficulty in allowing arbitrators to decide the scope of their own jurisdiction: [T]he “who (primarily) should decide ar-bitrability” question ... is rather arcane. A party often might not focus upon that question or upon the significance of having the arbitrators decide the scope of their own powers. And, given the principle that a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration, one can understand why courts might hesitate to interpret silence or ambiguity on the “who should decide arbitrability” point as giving the arbitrators that power, for doing so might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide. Id. at 945, 115 S.Ct. 1920 (citations omitted). Accordingly, the Court imposed a stringent test for the courts to apply in cases where the parties disagree over who should decide the arbitrability issue. Specifically, the Court stated: “Courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘elea[r] and unmistakabl[e]’ evidence that they did so.” Id. at 944, 115 S.Ct. 1920 (citing AT & T, 475 U.S. at 649, 106 S.Ct. 1415) (alteration in original). We adopted this standard in Cogswell, where we were asked to decide whether the district court or an arbitrator should determine whether an arbitration claim is barred under the time limit contained in NASD Code § 10304. See 78 F.3d at 476. The" }, { "docid": "20514193", "title": "", "text": "governs the arbitra-bility question. Volt’s holding does not address this question and does not alter our conclusion that federal law of arbitra-bility applies. B. Brennan next contends that even if federal arbitrability law applies, the district court erred by concluding that incorporation of the AAA rules constitutes “clear and unmistakable” evidence that the parties intended to delegate the arbitrability question to an arbitrator. We disagree. Generally, in deciding whether to compel arbitration, a court must determine two “gateway” issues: (1) whether there is an agreement to arbitrate between the parties; and (2) whether the agreement covers the dispute. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002). However, these gateway issues can be expressly delegated to the arbitrator where “the parties clearly and unmistakably provide otherwise.” AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (emphasis added); see also First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (“Courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakable]’ evidence that they did so”). The district court agreed with Opus Bank that under federal arbitrability law, the Delegation Provision “clearly and unmistakably” delegated to an arbitrator the question whether the Arbitration Clause was enforceable by expressly incorporating the AAA arbitration rules, one of which provides that the “arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the ... validity of the arbitration agreement.” In Oracle America, Inc. v. Myriad Group AG., 724 F.3d 1069 (9th Cir.2013) we observed that “[virtually every circuit to have considered the issue has determined that incorporation of the [AAA] arbitration rules constitutes clear and unmis: takable evidence that the parties agreed to arbitrate arbitrability.” Id. at 1074. We found this consensus persuasive in holding that incorporation of the UNCITRAL rules — which contain a jurisdictional provision “almost identical” to the one in the AAA rules — constituted “clear and unmistakable" }, { "docid": "6206233", "title": "", "text": "United Food, 889 F.2d 940 at 947. We therefore conclude that both the 1992 ACCESS Agreement and the 1997 Submission Agreement apply in this case. c. The 1992 ACCESS Agreement, as supplemented by the 1997 Submission Agreement, does not “clearly and unmistakably” demonstrate the parties’ intent to have issues of arbi-trability decided by an arbitrator rather than by the comts 1) Agreement must provide clear and unmistakable evidence of the parties’ intent The Supreme Court has stated that “arbitration is a matter of contract,” and thus that parties should not be forced to arbitrate issues that have not been agreed upon. See AT & T Tech., Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (interpreting an arbitration clause contained in a collective bargaining agreement). The Court has further stated that “[u]nless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate [a particular claim] is to be decided by the court, not the arbitrator.” Id. at 649, 106 S.Ct. 1415 (remanding the case to the district court to decide whether the collective bargaining agreement allowed arbitration of a particular labor dispute). The Supreme Court explained the applicable standards in First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), where it held that “[j]ust as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, so the question ‘who has the primary power to decide arbitrability’ turns upon what the parties agreed about that matter.” 514 U.S. at 943, 115 S.Ct. 1920 (citations omitted). The First Options Court also noted, however, the particular difficulty in allowing arbitrators to decide the scope of their own jurisdiction: [T]he “who (primarily) should decide ar-bitrability” question ... is rather arcane. A party often might not focus upon that question or upon the significance of having the arbitrators decide the scope of their own powers. And, given the principle that a party can be forced to arbitrate only those issues it specifically has agreed to" }, { "docid": "8541698", "title": "", "text": "have interpreted the FAA as having a narrow exception, rendering it inapplicable to employment contracts for seamen, railroad workers and others “involved in, or closely related to, the actual movement of goods in interstate eommerce.” Dickstein, 443 F.2d at 785; see, e.g., Cole, 105 F.3d at 1471. In the present case, Plaintiff worked for Defendant as a manager at a paper mill, and was not employed as a seaman, rail worker, or otherwise within the narrow exception. Furthermore, the First Circuit has specifically ruled that arbitration agreements apply to claims brought under Title VII for employment discrimination. See Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 11-12 (1st Cir.1999). Thus, the FAA applies to the instant case. B. Whether a Valid Contract Exists Next, the Court considers whether or not the Employee Solution Program booklet constitutes a valid, binding agreement between Plaintiff and Defendant. See Bangor Hydro-Elec. Co. v. New England Tel. & Tel. Co., 62 F.Supp.2d 152, 156 (D.Me.1999) (“The first and primary question before the Court in this case is whether the parties entered into an arbitration agreement at all.”). The FAA states that a “written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. “ ‘[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ ” McCarthy v. Azure, 22 F.3d 351, 355 (1st Cir.1994) (quoting AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)). Furthermore, it is the duty of the court—not the arbitrator—to decide whether the parties, in fact, agreed to arbitrate. See First Options v. Kaplan, 514 U.S. 938, 942-44, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). When determining whether the parties entered into a contract, federal courts utilize general state law" }, { "docid": "22975104", "title": "", "text": "the number announced by Ashcraft & Gerel as the senior partners’ draw, or did the firm have an obligation under the contract to follow its usual accounting practices to determine the cap on Coady’s compensation? Coady says that the panel concluded in its February 1999 order that the cap number was not the one announced by Ashcraft in 1997, but that the actual number was yet unknown, as Coady had submitted prima fa-cie evidence of “a substantial straddle of income in 1997.” B. Standard of Review and Interpretation of the Arbitration Clause The question of the appropriate standard of review is multifaceted. The question whether the parties agreed to arbitrate certain matters was for the court to decide. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Indeed, in PaineWebber, Inc. v. Elahi, 87 F.3d 589 (1st Cir.1996), we held that “the question whether the subject matter of the underlying dispute is within the scope of an expressly limited arbitration agreement is an ‘arbitrability’ issue.” Id. at 596 (construing AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 651, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)). And “arbitrability depends on contract interpretation, which is a question of law.” Id. at 592 (construing Commercial Union Ins. Co. v. Gilbane Bldg. Co., 992 F.2d 386, 388 (1st Cir.1993)). AlS stated in First Options, “[cjourts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakable]’ evidence that they did so.” First Options, 514 U.S. at 944, 115 S.Ct. 1920 (quoting AT & T Techs., 475 U.S. at 649, 106 S.Ct. 1415) (second and third alterations in original). The limited arbitration clause in Coady’s employment agreement contains no such “clear and unmistakable” language; there is in fact no evidence that the parties agreed to submit the question of arbitrability to arbitration. Thus, the arbitrators’ views about what is arbitrable are not given the usual leeway courts give to arbitrators. See id. at 945-47, 115 S.Ct. 1920. Coady responds by citing the familiar doctrine that" }, { "docid": "22445847", "title": "", "text": "find “clear and unmistakable” evidence that the parties agreed that the Tribunal would determine its own jurisdiction, undertook an independent review of whether the Government was bound to arbitrate with Bridas. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944-47, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Accord AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Whether a party is bound by an arbitration agreement is generally considered an issue for the courts, not the arbitrator, “[ujnless the parties clearly and unmistakably provide otherwise.” AT&T Tech., 475 U.S. at 649, 106 S.Ct. 1415. The district court concluded that despite the Government’s non-signatory status, principles of agency and equitable estoppel bound the Government to the JVA. C. As a preliminary matter, we will address Bridas’s assertion that the Government waived its right to contest the Tribunal’s jurisdiction because: (1) it failed to challenge the Tribunal’s Order No. 5; and (2) it voluntarily took part in the arbitration through Turkmenneft. Both of these arguments are meritless. Under § 172.082(f) of the Texas International Arbitration Act (“TIAA”), Tex. Civ. Prac. & Rem.Code § 172.082(f) (Vernon 1997 & Supp.2003), if a tribunal makes a preliminary ruling that it has jurisdiction (not that it has jurisdiction to determine jurisdiction), a party waives any objection to the ruling, unless it requests the district court of the county in which the arbitration is taking place to decide the matter. Tex. Civ. Prac. & Rem.Code § 172.082(f). Order No. 5 states: “[w]e have not yet decided whether the Government is bound by the commitment to arbitrate.” The order, thus, did not address whether the Tribunal had jurisdiction over the Government. § 172.082(f) of the TIAA is therefore inapplicable. Second, while it is rare that we are asked to decide a jurisdictional issue such as this one after the proceedings have concluded, neither the fact that the Government “allowed the proceeding to continue” over its objection, nor its “virtual representation” at the arbitration by Turk-menneft, waive its right to dispute the Tribunal’s jurisdiction in court. See, e.g., First" }, { "docid": "10863814", "title": "", "text": "which was adopted by the district court after a de novo review. The magistrate judge determined that the relationships cited for Powers were too tenuous to show evident partiality and that the Kiernans had waived this claim anyway by choosing to proceed with the arbitration with Powers on the panel. The magistrate judge also concluded that the Kiernans waived any limitation on the arbitrators’ authority to decide the issues by voluntarily submitting all of their claims to arbitration and that there was no evidence the arbitrators knew and purposefully disregarded applicable law. Ordinary standards of review apply on an appeal from an order declining to vacate an arbitration award, with conclusions of law reviewed de novo and any findings of fact reviewed for clear error. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947-48, 115 S.Ct. 1920, 1925-26, 131 L.Ed.2d 985 (1995). The Kiernans argue on appeal that Powers did not disclose a close business relationship with a party to the arbitration and that this establishes evident partiality, warranting vacation of the arbitration award under 9 U.S.C. § 10(a)(2). See Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 147-50, 89 S.Ct. 337, 338-40, 21 L.Ed.2d 301 (1968). They contend that under this court’s decision in Olson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 51 F.3d 157, 159-60 (8th Cir.1995), Powers was required to disclose her business associates’ indirect ties with Piper Jaffray because the relationships in question “create[ ] an impression of possible bias.” Id. (quoting Commonwealth Coatings, 393 U.S. at 149, 89 S.Ct. at 339-40). The Kiernans complain about two sets of indirect connections between Powers’ employer, Sheffield Securities, its holding company Dublin Investments, and Piper Jaffray. The first involves Benjamin (Ben) Jaffray. Ben Jaffray’s late uncle had helped found Piper Jaffray in 1913; he died in 1971. After the arbitration hearings closed but before the award, in early December 1995 the Kiernans read in an article in Corporate Report that Ben Jaffray had been one of the founders of Sheffield and that Powers was the chief operating officer (COO) and president of" }, { "docid": "15039955", "title": "", "text": "section shall not extend applicable statutes of limitations, nor shall it apply to any case which is directed to arbitration by a court of competent jurisdiction. Merrill Lynch argues that section 15 is a substantive eligibility requirement relating to the arbitrability of claims more than six years old. It cites AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986), in which the Supreme Court held that “[ujnless the parties clearly and unmistakenly provide otherwise, the question of whether the parties agreed to arbitrate is to be resolved by the court, not the arbitrator.” Merrill Lynch asserts that because it never agreed that the arbitrator could determine arbitrability, the court must consider the timeliness of the Cohens’ claims prior to submission to arbitration. The Cohens counter that section 15 is not an eligibility requirement, but rather is a procedural statute of limitations and its applicability must be determined by the arbitrator. They contend that Belke v. Merrill Lynch, Pierce, Fenner & Smith, 693 F.2d 1023 (11th Cir.1982), controls the resolution of this case. In Belke, this court held that “the issue of whether a request for arbitration is timely under the terms of the contract [is] an issue properly resolved by the arbitrator.” Id. at 1028. They further contend that even if Belke does not control, § 35 of the NASD Code which provides that “[t]he arbitrators shall be empowered to interpret and determine the applicability of all provisions under this Code which interpretation shall be final and binding upon the parties,” is an expression of the parties’ intentions that the arbitrator should determine, the timeliness of their claims. Initially, we must determine if Belke controls the present dispute. In Belke, the plaintiff had contended that Merrill Lynch was not entitled to arbitrate its claims because it had failed to serve written notice of an intent to arbitrate within one year of when the cause of action accrued, as required by the arbitration agreement. Id. We held that the failure to serve notice of an intent to arbitrate" }, { "docid": "20345397", "title": "", "text": "80 S.Ct. 1347, 1358, 4 L.Ed.2d 1409 (1960) (Brennan, J., concurring)). Notwithstanding this general presumption, the parties are ultimately in control of their own affairs since, as noted above, arbitration is essentially a matter of contractual agreement, and parties may choose to submit questions of arbitrability to an arbitrator. See First Options of Chicago, Inc. v. Kaplan, — U.S.-, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). In light of the grave consequences that could potentially result from allowing the arbitrators to define the scope of their own power and authority, however, the Supreme Court has made clear that such an agreement must be “clear and unmistakable.” Id. at-, 115 S.Ct. at 1924. Quoting Litton, our court recently reaffirmed its view that the § 15 time limitation of the NASD Code of Arbitration Procedure is generally not arbitrable. City of Detroit Pension Fund, 91 F.3d at 30; see also Dean Witter Reynolds, Inc. v. McCoy, 995 F.2d 649, 651 (6th Cir.1993) (reasoning that since § 15 dictates whether a dispute is even “eligible” for arbitration, courts must determine whether a claim is barred by the six-year period). PROVISIONS THAT PLAINTIFFS ARGUE ARE “CLEAR AND UNMISTAKABLE” The Sarvers press an argument heretofore not addressed by our court in a published decision — namely that § 35 of the NASD Code of Arbitration Procedure, and also to a lesser extent § 1, manifests the type of “clear and unmistakable” intent necessary to require submission of the eligibility determination to the arbitrators. We join a majority of circuits in holding that in cases of this- type, the eligibility determination of the Sarvers’ claims cannot be submitted to arbitration notwithstanding both provisions since neither provides clear and unambiguous language to the contrary. See First Options, — U.S. at-, 115 S.Ct. at 1924. Recently, in Cogswell v. Merrill Lynch, Pierce, Fenner & Smith Inc., 78 F.3d 474 (10th Cir.1996), the Tenth Circuit considered the precise question involved here, and after an extended discussion of the interaction between § 15 and § 35, joined the Third, Sixth, Seventh and Eleventh Circuits in holding that there was no" }, { "docid": "2024950", "title": "", "text": "could have understood that in signing the form, she was agreeing to arbitrate sexual discrimination suits, we held that Lai was not bound by any valid agreement to arbitrate employment discrimination claims. Id. at 1305. Nelson’s case cannot be so easily resolved, because Cyprus’s Employee Handbook does specifically refer to arbitration of employment disputes including statutory claims and those arising under the equal employment opportunity laws. The question, therefore, is whether the Employee Handbook, which Nelson acknowledged receiving and agreed to read and understand before it became effective, is a valid agreement to arbitrate employment disputes, including Nelson’s ADA claim. Under Lai, this depends on whether Nelson “knowingly contracted] to forego [his] statutory remedies in favor of arbitration.” Id. The answer to this question, in turn, must depend on Arizona employment contract law. As the Supreme Court instructed in First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), “[w]hen deciding whether the parties decided to arbitrate a certain matter ... courts generally ... should apply ordinary state-law principles that govern the formation of contracts.” Id. at 944, 115 S.Ct. at 1924; see also Doctor’s Assocs., Inc. v. Casarotto, — U.S. -, -, 116 S.Ct. 1652, 1655, 134 L.Ed.2d 902 (1996) (noting that state law “concerning the validity, revocability, and enforceability of contracts” governs agreements to arbitrate); Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 833-34 (8th Cir.1997) (following First Options and interpreting arbitration agreement in light of state law); Webb v. Investacorp, Inc., 89 F.3d 252, 258 (5th Cir.1996) (same); Cogswell v. Merrill Lynch, Pierce, Fenner & Smith Inc., 78 F.3d 474, 478 (10th Cir.1996) (same); Doctor’s Assocs., Inc. v. Distajo, 66 F.3d 438, 452 (2d Cir.1995) (same). The district court noted that Arizona law recognizes that an employee handbook may be incorporated into an employment contract. See, e.g., Leikvold v. Valley View Community Hosp., 141 Ariz. 544, 688 P.2d 170, 174 (1984) (en bane). It found that Nelson’s affidavit did not raise a genuine issue of fact regarding whether he knowingly and voluntarily contracted away his right to file a statutory" }, { "docid": "1403068", "title": "", "text": "an agreement to arbitrate encompasses statutory claims, the arbitrator has the authority to enforce substantive statutory rights, even if those rights are in conflict with contractual limitations in the agreement that would otherwise apply. Based upon these principles and Supreme Court precedent, we held in Larry’s United Super, 253 F.3d at 1086, and again in Arkcom, 289 F.3d at 539, that the extent of an arbitrator’s procedural and remedial authority are issues for the arbitrator to resolve in the first instance. Accord Gannon v. Circuit City Stores, Inc., 262 F.3d 677, 681-82 (8th Cir.2001). Second, in denying Ameriquest’s motion to compel arbitration, the district court compared the terms of the Arbitration Agreement with the provisions of the FLSA and declared the agreement to arbitrate unenforceable. We will assume without deciding that the grounds-for-revocation proviso in 9 U.S.C. § 2 creates an exception to arbitrability over and above the “fraud or overwhelming economic power” exception noted in Gilmer. But even if that is true, the district court’s decision is contrary to AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), where the Court adopted the rule that issues of arbitrability are to be decided by the arbitrator in the first instance if the agreement to arbitrate “clearly and unmistakably” so provides. Accord First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944-45, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). In this case, the Arbitration Agreement clearly and unmistakably left the issues addressed by the district court to the arbitrators in the first instance. For these reasons, the district court erred in denying the motion to compel arbitration. Its Order of January 23, 2002 is reversed. The mandate shall issue forthwith. . The account executives argue that the Arbitration Agreement is unenforceable because its one-year statute of limitations unlawfully limits the damages they may recover under the FLSA; because the agreement’s cost-sharing provision may impose significantly greater costs than a judicial forum; because the California venue provision may increase costs and discourage the assertion of FLSA claims; and because" }, { "docid": "23501431", "title": "", "text": "to determining two issues: i) whether a valid agreement or obligation to arbitrate exists, and ii) whether one party to the agreement has failed, neglected or refused to arbitrate.” PaineWebber Inc. v. Bybyk, 81 F.3d at 1198. In addressing these issues, courts are mindful that “arbitration is a matter of contract,” AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), and that parties cannot be compelled to arbitrate issues that they have not specifically agreed to submit to arbitration, First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 945, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Whether parties have obligated themselves to arbitrate certain issues, including the question of arbitrability, is determined by state law. See id. at 944, 115 S.Ct. 1920; Bell v. Cendant Corp., 293 F.3d at 566. Nevertheless, under the FAA, certain presumptions inform the analysis. Specifically, the federal policy in favor of arbitration requires that “any doubts concerning the scope of arbitrable issues” be resolved in favor of arbitration. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. at 24-25, 103 S.Ct. 927. An important exception applies, however, when the doubt concerns who should decide arbitrability. The law then reverses the presumption to favor judicial rather than arbitral resolution. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. at 944-45, 115 S.Ct. 1920. Thus, as federal case law makes plain, “the issue of arbitra-bility may only be referred to the arbitrator if ‘there is “dear and unmistakable\" evidence from the arbitration agreement, as construed by the relevant state law, that the parties intended that the question of arbitrability shall be decided by the arbitrator.’” Bell v. Cendant Corp., 293 F.3d at 566 (emphasis in original) (quoting PaineWebber Inc. v. Bybyk, 81 F.3d at 1198-99 (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. at 944)). New York law follows the same rule, i.e., it acknowledges the “well settled proposition that the question of arbitrability is an issue generally for judicial determination,” but at the same time it recognizes an" }, { "docid": "9575871", "title": "", "text": "the arbitrators the power to decide whether § 15 bars it from exercising jurisdiction. Sorrells, 957 F.2d at 514 & n. 6 (citing AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 1418-19, 89 L.Ed.2d 648 (1986)) (“Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator”). A substantial minority, typified by the Fifth and Eighth Circuits, hold only arbitrators, and not courts, can decide the issue. In FSC Securities Corp. v. Freel, 14 F.3d 1310, 1312-13 (8th Cir.1994), the Eighth Circuit relied exclusively on § 35 of the NASD Code and held that provision is a “clear and unmistakable” expression of the parties intent to have the arbitrators, rather than the courts, decide whether § 15 applies. In Smith Barney Shearson, Inc. v. Boone, 47 F.3d 750, 753 (5th Cir.1995), the Fifth Circuit did not consider § 35, but instead concluded the “crucial distinction” was whether § 15 relates to the “ ‘substantive arbitrability’ ” of a claim or merely “present[s] issues of ‘pro cedural arbitrability’ relating to the procedure of arbitration agreed upon.” It held only the arbitrator could determine whether § 15 applies, because under Fifth Circuit precedent timeliness issues are procedural and must be decided by the arbitrator. Id. at 754. Merrill Lynch contends we should adopt the majority position. We agree. In its recent unanimous decision in First Options of Chicago, Inc. v. Kaplan, — U.S. -, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), the Supreme Court spelled out the analysis courts must apply in determining whether arbitrators or courts are to decide whether a matter is subject to arbitration. It explained “[jlust as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, ... so the question ‘who has the primary power to decide arbitrability’ turns upon what the parties agreed about that matter.” Id., — U.S. at -, 115 S.Ct. at 1923. “When deciding whether the parties agreed to arbitrate" }, { "docid": "23135315", "title": "", "text": "arbitration, is encouraged to resolve disputes arising under [Title VII].” Pub. L. No. 102-166, § 118, 105 Stat. at 1081. In Austin, we stated that this language “could not be any more clear in showing Congressional favor towards arbitration.” 78 F.3d at 881. We also noted that the legislative history did not establish a contrary intent nor was there an “inherent conflict” between the Civil Rights Act and arbitration. Id. at 881-82. This holding is in step with our sister circuits which have also rejected the EEOC’s argument. See, e.g., Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith Inc., 170 F.3d 1, 4-9 (1st Cir.1999); Seus v. John Nuveen & Co., 146 F.3d 175, 182-83 (3d Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 1028, 143 L.Ed.2d 38 (1999); Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 837 (8th Cir.1997). But see Duffield v. Robertson Stephens & Co., 144 F.3d 1182, 1189-1200 (9th Cir.), cert. denied, — U.S. -, 119 S.Ct. 465, 142 L.Ed.2d 418 (1998). III. Predispute agreements to arbitrate Title VII claims are thus valid and enforceable. The question remains whether a binding arbitration agreement between Phillips and Hooters exists and compels Phillips to submit her Title VII claims to arbitration. The FAA provides that agreements “to settle by arbitration a controversy thereafter arising out of such contract or transaction .... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. “It [i]s for the court, not the arbitrator, to decide in the first instance whether the dispute [i]s to be resolved through arbitration.” AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 651, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986); see also AT. Massey Coal Co. v. International Union, 799 F.2d 142, 146 (4th Cir.1986) (“[Wlhether there is a contract to arbitrate ‘is undeniably an issue for judicial determination.’ ” (quoting AT & T Techs., 475 U.S. at 649, 106 S.Ct. 1415)). In so deciding, we “ ‘engage in a limited review to ensure that the" }, { "docid": "8606236", "title": "", "text": "Emergency Law) — extrapolating the value of BG Group’s total investment and assessing the difference as the damages caused by the Emergency Law: $185,285,485.85 in U.S. dollars (excluding interest, costs, and attorneys’ fees). Argentina petitioned to vacate or modify the Final Award pursuant to the FAA, 9 U.S.C. §§ 10(a) & II. BG Group filed an opposition and a cross-motion for recognition and enforcement of the Final Award, and for a prejudgment bond. Following further filings in opposition or reply, the district court denied vacatur and granted enforcement. Republic of Argentina v. BG Group PLC, 715 F.Supp.2d 108 (D.D.C.2010); Republic of Argentina v. BG Group PLC, 764 F.Supp.2d 21 (D.D.C.2011). Argentina appeals; our review of the district court’s findings of fact is for clear error and our review of questions of law is de novo. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947-48, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); Lessin v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 481 F.3d 813, 816 (D.C.Cir.2007). II. The “gateway” question in this appeal is arbitrability: when the United Kingdom and Argentina executed the Treaty, did they, as contracting parties, intend that an investor under the Treaty could seek arbitration without first fulfilling Article 8(l)’s requirement that recourse initially be sought in a court of the contracting party where the investment was made? That question raises the antecedent question of whether the contracting parties intended the answer to be provided by a court or an arbitrator. The Supreme Court has held that the intent of the contracting parties controls whether the answer to the question of arbitrability is to be provided by a court or an arbitrator. See, e.g., First Options, 514 U.S. at 943, 115 S.Ct. 1920. “Courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakable]’ evidence that they did so.” Id. at 944, 115 S.Ct. 1920 (quoting AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)) (alterations in original). This comports with the “basic objective” of arbitration," }, { "docid": "15039962", "title": "", "text": "when the question to be resolved is who decides arbitrability: [T]he law treats silence or ambiguity about the question “who (primarily) should decide arbitrability” differently from the way it treats silence or ambiguity about the question “whether a particular merits-related dispute is- arbitrable because it is within the scope of a valid arbitration agreement” — for in respect to this latter question the law reverses the presumption. First Options of Chicago, Inc. v. Kaplan, — U.S. -, -, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995) (emphasis in original). Thus, “[cjourts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakabl[e] evidence that they did so.’ ” Id. (quoting AT & T Technologies, Inc., 475 U.S. at 649, 106 S.Ct. at 1418). We hold that section 35 is not “clear and unmistakable evidence” of the parties’ intent to allow the arbitrator to determine the timeliness of the claim. See Sorrells, 957 F.2d at 514 n. 6 (“we do not believe that [§ 35] is a clear and unmistakable expression of the parties’ intent to have the arbitrators, and not the court, determine which disputes the parties have agreed to submit to arbitration.”). Section 35 is a general contract term which gives the arbitrator the power to interpret the NASD Code. Section 15, by contrast, is a specific provision, which delineates the claims that are untimely, and thus, not eligible for arbitration. “When general positions in a contract are qualified by the specific provisions, the rule of construction is that the specific provisions in the agreement control.” Goldberg v. Bear, Stearns & Co., Inc., 912 F.2d 1418, 1421 (11th Cir.1990). We conclude that, at most, section 35 creates an ambiguity as to who determines arbitrability. Because an ambiguity is insufficient to override the presumption that courts determine arbitrability, see Kaplan, — U.S. at -, 115 S.Ct. at 1924, we conclude that the district court must determine whether the dispute between the Cohens and Merrill Lynch is arbitrable. IV. The Cohens purchased the limited partnership interests between 1985 and 1987. Merrill Lynch argues that the “occurrence" }, { "docid": "23501430", "title": "", "text": "clause at issue in this ease is found at section III, paragraph 15, of the parties’ Representation Agreement, which provides as follows: 15. All disputes between you [Triple-fine] and us [Stone & Webster ] concerning or arising out of this Agreement shall be referred to arbitration to the International Chamber of Commerce, New York, New York, in accordance with the rules and procedures of International Arbitration. This Agreement and the rights and obligations of the parties shall be construed in accordance with and governed by the laws of New York. Because this provision is part of a contract affecting interstate and international commerce, it is governed by the Federal Arbitration Act (“FAA”). See 9 U.S.C. §§ 1, 2 (1999); Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265, 273-81, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1198 (2d Cir.1996). Pursuant to the FAA, the role of courts is “limited to determining two issues: i) whether a valid agreement or obligation to arbitrate exists, and ii) whether one party to the agreement has failed, neglected or refused to arbitrate.” PaineWebber Inc. v. Bybyk, 81 F.3d at 1198. In addressing these issues, courts are mindful that “arbitration is a matter of contract,” AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), and that parties cannot be compelled to arbitrate issues that they have not specifically agreed to submit to arbitration, First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 945, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Whether parties have obligated themselves to arbitrate certain issues, including the question of arbitrability, is determined by state law. See id. at 944, 115 S.Ct. 1920; Bell v. Cendant Corp., 293 F.3d at 566. Nevertheless, under the FAA, certain presumptions inform the analysis. Specifically, the federal policy in favor of arbitration requires that “any doubts concerning the scope of arbitrable issues” be resolved in favor of" }, { "docid": "12955856", "title": "", "text": "it was for the Court to determine the scope of the Arbitration Clause. “[Battaglia’s] attempts to raise the actual merits of the claims here are completely irrelevant to the issue of arbitrability, which is the only issue before the Court. See AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (arbitrability of a dispute is for the court to decide).” Memorandum Opinion at 11. Cf. Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 331 A.2d 184,185 (1975). “[W]hen deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally ... should apply ordinary state-law principles that govern the formation of contracts.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Under Pennsylvania law, “the threshold question of whether a party agreed to arbitrate a dispute is a jurisdictional question that must be decided by a court.” Smith v. Cumberland Group, Ltd., 455 Pa.Super. 276, 687 A.2d 1167, 1171 (1997). Furthermore, there is no indication — in the language of the Arbitration Clause or otherwise in the record before this Court — that the parties intended to arbitrate the scope of the Clause itself. Consequently, this determination was properly made by the District Court. See First Options, 514 U.S. at 944, 115 S.Ct. 1920 (“[CJourts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakfable] evidence’ that they did so.”) (second and third alterations in original). B. Battaglia’s next argument on appeal is that the Arbitration Clause is limited to disputes involving the interpretation and performance of the Settlement Agreement, and thus the Clause does not encompass disputes going to the formation of that Agreement. In particular, Battaglia asserts that because the Arbitration Clause uses the language “any controversy [that] arises hereunder [i.e., under the Settlement Agreement],” rather than broader language such as “any controversy arising under or related to the Settlement Agreement,” the Arbitration Clause does not encompass the Appellees’ counterclaim in the arbitration proceeding alleging that the Settlement" }, { "docid": "15039954", "title": "", "text": "Cohens asserted claims for: common law fraud; breach of fiduciary duty; gross negligence; violation of the Florida Securities and Investor Protection Act, Fla.Stat. ch. 517; and intentional infliction of emotional distress. Merrill Lynch responded by filing an action in Florida state court seeking to enjoin arbitration on the ground that most of the Cohens’ claims were time-barred. The Co-hens removed to federal court on the basis of diversity jurisdiction, and moved to compel arbitration and stay the federal action pending arbitration. The district court held that the question of whether the Cohens’ claims were time-barred was to be decided by the arbitration panel, not a federal court. The district court thus granted the Cohens’ motion to compel arbitration and accordingly dismissed Merrill Lynch’s suit. II. Section 15 of the NASD Code provides: Time Limitation on Submission: Section 15. No dispute, claim, or controversy shall be eligible for submission to arbitration under this Code where six (6) years have elapsed from the occurrence or event giving rise to the act or dispute, claim, or controversy. This section shall not extend applicable statutes of limitations, nor shall it apply to any case which is directed to arbitration by a court of competent jurisdiction. Merrill Lynch argues that section 15 is a substantive eligibility requirement relating to the arbitrability of claims more than six years old. It cites AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986), in which the Supreme Court held that “[ujnless the parties clearly and unmistakenly provide otherwise, the question of whether the parties agreed to arbitrate is to be resolved by the court, not the arbitrator.” Merrill Lynch asserts that because it never agreed that the arbitrator could determine arbitrability, the court must consider the timeliness of the Cohens’ claims prior to submission to arbitration. The Cohens counter that section 15 is not an eligibility requirement, but rather is a procedural statute of limitations and its applicability must be determined by the arbitrator. They contend that Belke v. Merrill Lynch, Pierce, Fenner & Smith, 693" }, { "docid": "3961876", "title": "", "text": "clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.” AT & T Technologies v. Communications Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Unlike the general presumption that a particular issue is arbitrable when the existence of an arbitration agreement is not in dispute, see Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), when the dispute is whether there is a valid and enforceable arbitration agreement in the first place, the presumption of arbitrability falls away. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944-45, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). As the Court explained, Courts should not assume that the parties agreed to arbitrate arbitrability unless there is “clear and unmistakable” evidence that they did so. In this manner, the law treats silence or ambiguity about the question “who (primarily) should decide arbi-trability” differently from the way it treats silence or ambiguity about the question “whether a particular merits-related dispute is arbitrable because it is within the scope of a valid arbitration agreement”— for in respect to this latter question the law reverses the presumption. Id. (citations omitted); see also Cogswell v. Merrill Lynch, Pierce, Fenner & Smith Inc., 78 F.3d 474, 480 (10th Cir.1996). Courts will not apply the traditional presumption in fa vor of arbitrability when the particular issue is whether the parties have agreed to allow an arbitrator to decide the existence of their putative agreement to arbitrate because “doing so might ... force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide.” First Options, 514 U.S. at 945, 115 S.Ct. 1920. Furthermore, “the issue is not whether it would be more convenient for courts or arbitrators to decide” whether the parties have a valid and enforceable agreement to arbitrate, but rather “whether the parties’ agreement contains ‘clear and unmistakable’ evidence they intended the arbitrator to decide the issue.” Cogswell, 78 F.3d" } ]

[ { "docid": "13028471", "title": "", "text": "the claim of ineffective assistance of counsel. Having carefully reviewed all of Creed’s arguments in the context of the entire record, including the Presentence Report, we conclude that the sentence must be affirmed. We are grateful to appointed counsel for his diligent service on appeal. Affirmed. . The Honorable Russell G. Clark, United States District Judge for the Western District of Missouri. . This is a question of law which we have jurisdiction to decide on appeal under 18 U.S.C. § 3742(e)(1). BRIGHT, Senior Circuit Judge, dissenting in part and concurring in part. I dissent with respect to the majority’s treatment of the consecutive nature of Creed’s sentence. The presentence report advised the district court that Guidelines § 5G1.3 required Creed’s sentence for escape to run consecutively with the unexpired portion of his previous sentence. Section 5G1.3, however, directly conflicts with the language of 18 U.S.C. § 3584(a) (1988) giving district courts discretion to impose concurrent or consecutive sentences. In my view, the Guidelines simply cannot take precedence over the plain lan guage of the statute. United States v. Wills, 881 F.2d 823, 825-26 (9th Cir.1989). But see United States v. Fossett, 881 F.2d 976, 980 (11th Cir.1989). In the absence of any indication in the record to the contrary, we must assume that the district court relied upon the incorrect statement of the law contained in the presentence report. Accordingly, I would remand for resentencing in light of section 3584(a). . This aspect of sentencing is fundamental and we can review it for plain error. Fed.R.Crim.P. 52(b)." } ]

[ { "docid": "15709180", "title": "", "text": "Higgins, who was already 27 years of age and had been in prison from age 17, would not be eligible for release from his state sentence for at least 7 to 10 years. The judge stated that incarcerating Higgins for an additional 5 years would not be cost effective, fair, or just, and that Higgins should exercise this \"opportunity for redemption” while he was still-relatively young. . The Commission amended § 5G1.3 in 1989, 1991, 1992, 1993, and to its present form in 1995. . This conclusion is consistent with our opinion in United States v. Oser, 107 F.3d 1080 (3d Cir. 1997). At issue in Oser was the applicability of Guideline § 5 G 1.3(b), which mandates a concurrent sentence where the undischarged term of imprisonment resulted from offenses fully taken into account in computation of the new sentence. Although this provision is as inhibiting upon a sentencing court’s discretion as § 5G1.3(a), the issue was not raised in Oser that § 5G1.3(b) was in conflict with 18 U.S.C. § 3584(a). . We find it unnecessary to address the government’s alternative argument that, while § 5G1.3 may conflict with the language of § 3584(a), the guideline departure mechanism adequately preserves a court's discretion. A few circuits have resolved the apparent conflict in this fashion. See, e.g., United States v. Schaefer, 107 F.3d 1280, 1285 (7th Cir.1997), petition for cert. filed, (U.S. Jul. 3, 1997) (No. 97-5125) (holding that \"while § 5 G 1.3 (a) creates a presumption in favor of a consecutive sentence, sentencing judges are free to depart from the Guidelines and order a downward departure, so long as they comply with the procedures required for downward departure in general outlined in 19 U.S.C. § 3553(c)(2)”); see also Flowers, 995 F.2d at 317, United States v. Shewmaker, 936 F.2d 1124, 1127-28 (10th Cir. 1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 884, 116 L.Ed.2d 788 (1992); United States v. Stewart, 917 F.2d 970, 972-73 (6th Cir. 1990); United States v. Miller, 903 F.2d 341, 349 (5th Cir.1990); Fossett, 881 F.2d at 980. We emphasize, however, that the power" }, { "docid": "5222597", "title": "", "text": "to his arson and mail-fraud sentences, and to serve his enhancement under 18 U.S.C. § 3147 and U.S.S.G. § 2J1.7 (Nov.1990) consecutively to all three sentences. See, e.g. 18 U.S.C. § 3584 (1988) (“Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.”); United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989) (holding it is within the district court’s discretion to impose consecutive or concurrent sentences), cert. denied, 494 U.S. 1036, 110 S.Ct. 1493, 108 L.Ed.2d 629 (1990). IV Lincoln claims the District Court incorrectly found him to have been “an organizer, leader, manager, or supervisor in ... criminal activity,” who deserved a two-level increase in his base offense level under U.S.S.G. § 3Bl.l(c) (Nov.1990). “We note that U.S.S.G. § 3B1.1, as amplified in the accompanying Commentary, employs a very broad definition of what constitutes a ‘leadership and organizational role.’ ” United States v. Collar, 904 F.2d 441, 442 (8th Cir.1990) (quoting U.S.S.G. § 3B1.1, comment (n. 3)). A court considering the propriety of this adjustment should examine facts such as: the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. U.S.S.G. § 3B1.1, comment (n. 3) (Nov. 1990). The government bears the burden of proving that the defendant’s conduct sufficiently displays the badges of leadership or management to warrant this adjustment. See United States v. Dinges, 917 F.2d 1133, 1135 (8th Cir.1990) (“ ‘The guidelines contemplate that the government has the burden of proving the applicability of sections which would enhance the offense level’ ”) (quoting United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.1989)). The sentencing court’s finding on this factual issue will not be reversed absent a demonstration of clear error. United States v. Fuller, 942 F.2d 454, 458 (8th Cir.), cert. denied," }, { "docid": "22548453", "title": "", "text": "date the crime was committed. 18 U.S.C. § 3553(a)(4), (5); see United States v. Suarez, 911 F.2d 1016, 1020-22 (5th Cir.1990); United States v. Adeniyi, 912 F.2d 615, 618 (2d Cir.1990). Although Brown robbed the bank on June 28, 1989, he was sentenced on April 18, 1990, well after the amendment to § 5G1.3 became effective. While different in its application, current § 5G1.3 likewise deals with imposition of a sentence on a defendant already serving an unexpired term of imprisonment. That section now provides: If the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status), the sentence for the instant offense shall be imposed to run consecutively to the unexpired term of imprisonment. U.S.S.G. § 5G1.3 (as amended November 1, 1989). We have previously discussed the effect of this amendment, which substantively changed, and did not merely restate or clarify, the prior version. See United States v. Miller, 903 F.2d 341, 348 (5th Cir.1990). Neither version of this guideline controls the issue Brown raises: whether a federal district court may prospectively forbid its sentence from being served concurrently with any sentence that may subsequently be handed down by a state court, even when the state proceedings arise from identical offense conduct. It is well-established that a defendant may be prosecuted and sentenced by both federal and state governments if the defendant’s criminal conduct violates the laws of each sovereign. United States v. Wheeler, 435 U.S. 313, 316-17 & n. 7, 98 S.Ct. 1079, 1082-83 & n. 7, 55 L.Ed.2d 303 (1978). Whether a sentence imposed should run consecutively or concurrently is committed to the sound discretion of the district court, subject to consideration of the factors set forth in 18 U.S.C. § 3553(a). 18 U.S.C. § 3584(b); see United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989), cert. denied, _ U.S. _, 110 S.Ct. 1493, 108 L.Ed.2d 629 (1990); United States v. Wills, 881 F.2d 823, 826 (9th Cir.1989); United States v. Russell, 905 F.2d 1450, 1457 (10th Cir.), cert. denied, _ U.S. _, 111 S.Ct. 267," }, { "docid": "23521392", "title": "", "text": "as a probationer does not fall within any of these categories. We therefore conclude that Gullickson was not on release status when he committed the federal crime, and he is not subject to the section 2J1.7 increase. The government next contends that 18 U.S.C. § 3584(a) authorized the district court to order the federal sentence to run consecutively to the unexpired state sentences notwithstanding U.S.S.G. § 5G1.3(c). The plain language of section 3584(a), read in isolation, appears to support this argument because it grants district courts discretion to order either consecutive or concurrent sentences when sentencing a defendant already subject to an unexpired term of imprisonment. Section 3584(a), however, does not exist in a vacuum. Section 3584(b) places limits on this discretion by providing that “[t]he court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider ... the factors set forth in section 3553(a).” Section 3553(a)(4) states that courts must consider “the kinds of sentences and the sentencing range ... set forth in the guidelines that are issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(1) ... (Duties of the Commission).” The Sentencing Commission issued U.S.S.G. § 5G1.3 under the authority of 28 U.S.C. § 994(a)(1)(D). Pursuant to 28 U.S.C. § 994(b)(1), however, the Commission must make the guidelines consistent with Title 18, including section 3584. We must attempt to interpret these provisions in a manner that gives effect to them all, if possible. See Mountain States Tel. & Tel. Co. v. Santa Ana, 472 U.S. 237, 249-50, 105 S.Ct. 2587, 2594-95, 86 L.Ed.2d 168 (1985); United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 519-20, 99 L.Ed. 615 (1955). We have previously noted the existence of a potential conflict between the guideline and the statute, but found it unnecessary to resolve the issue. United States v. Creed, 897 F.2d 963, 965 (8th Cir.1990); United States v. Smitherman, 889 F.2d 189 (8th Cir.1989), cert. denied, 494 U.S. 1036, 110 S.Ct. 1493, 108 L.Ed.2d 629 (1990). A number of courts have addressed this issue, and the majority have concluded" }, { "docid": "23151340", "title": "", "text": "3584(a). Wills, 881 F.2d at 826. The apparent tension, in sum, is between two provisions of 28 U.S.C. § 994 — subsection (a)(1)(D), delegating to the Sentencing Commission authority to promulgate Guidelines regarding concurrent and consecutive sentences, and subsection (b)(1), requiring consistency with 18 U.S.C. § 3584(a). The Eleventh Circuit, in United States v. Fosset, 881 F.2d 976 (11th Cir.1989), implicitly rejected the Wills rationale and reconciled § 3584(a) and Guideline § 5G1.3. Most circuit courts that have addressed this issue have followed Fosset. See United States v. Stewart, 917 F.2d 970 (6th Cir.1990); United States v. Miller, 903 F.2d 341 (5th Cir.1990); United States v. Rogers, 897 F.2d 134 (4th Cir.1990). These courts have held that Guideline § 5G1.3 is reconcilable with 18 U.S.C. § 3584(a) because § 5G1.3 does not preclude a court from departing from the Guidelines and sentencing concurrently. The Guidelines provide generally for two methods of downward departure. First, “the particular guideline at issue may suggest circumstances or factors that, if present, may provide the basis for departure.” Rogers, 897 F.2d at 137. Second, the court retains discretion to depart, subject to review, if it determines that factors relevant to the sentencing have not been addressed adequately by the Guidelines. See id.; 18 U.S.C. §§ 3553(b) and 3742(e)(3); U.S.S.G., Ch. 1, Pt. A, intro, at 4(b), and § 5K2.0. See also United States v. Maldonado-Campos, 920 F.2d 714, 719-20 (10th Cir.1990). All of the statutes involved in this analysis, 18 U.S.C. § 3553, 18 U.S.C. § 3584, and 28 U.S.C. § 994 were enacted as part of the Sentencing Reform Act of 1984. In resolving the apparent tension among the statutes, we are guided by well-established canons of statutory construction. “ ‘In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.’ ” Mastro Plastics Corp. v. Labor Board, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956) (quoting United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113," }, { "docid": "15709181", "title": "", "text": "it unnecessary to address the government’s alternative argument that, while § 5G1.3 may conflict with the language of § 3584(a), the guideline departure mechanism adequately preserves a court's discretion. A few circuits have resolved the apparent conflict in this fashion. See, e.g., United States v. Schaefer, 107 F.3d 1280, 1285 (7th Cir.1997), petition for cert. filed, (U.S. Jul. 3, 1997) (No. 97-5125) (holding that \"while § 5 G 1.3 (a) creates a presumption in favor of a consecutive sentence, sentencing judges are free to depart from the Guidelines and order a downward departure, so long as they comply with the procedures required for downward departure in general outlined in 19 U.S.C. § 3553(c)(2)”); see also Flowers, 995 F.2d at 317, United States v. Shewmaker, 936 F.2d 1124, 1127-28 (10th Cir. 1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 884, 116 L.Ed.2d 788 (1992); United States v. Stewart, 917 F.2d 970, 972-73 (6th Cir. 1990); United States v. Miller, 903 F.2d 341, 349 (5th Cir.1990); Fossett, 881 F.2d at 980. We emphasize, however, that the power of the district courts to depart from the Sentencing Guidelines is not unfettered." }, { "docid": "23151339", "title": "", "text": "imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively....” Although § 3584(a) read alone appears to grant unfettered discretion to a sentencing court, subsection (b) of the statute requires the district court to consider the factors set forth in 18 U.S.C. § 3553(a) before determining whether to sentence consecutively or concurrently with the prior sentence. Section 3553(a)(5), in turn, requires the district court to consider the Guidelines promulgated by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(1). And § 994(a)(1)(D) delegates to the Sentencing Commission authority to promulgate guidelines governing a district court’s “determination of whether multiple sentences to terms of imprisonment should be ordered to run concurrently or consecutively.” But § 994 also requires that the Guidelines be consistent with title 18, including 18 U.S.C. § 3584(a). See 28 U.S.C. § 994(b)(1). The Wills court focused on this latter portion of § 994, holding that Guideline § 5G1.3 is ultra vires because it is inconsistent with 18 U.S.C. § 3584(a). Wills, 881 F.2d at 826. The apparent tension, in sum, is between two provisions of 28 U.S.C. § 994 — subsection (a)(1)(D), delegating to the Sentencing Commission authority to promulgate Guidelines regarding concurrent and consecutive sentences, and subsection (b)(1), requiring consistency with 18 U.S.C. § 3584(a). The Eleventh Circuit, in United States v. Fosset, 881 F.2d 976 (11th Cir.1989), implicitly rejected the Wills rationale and reconciled § 3584(a) and Guideline § 5G1.3. Most circuit courts that have addressed this issue have followed Fosset. See United States v. Stewart, 917 F.2d 970 (6th Cir.1990); United States v. Miller, 903 F.2d 341 (5th Cir.1990); United States v. Rogers, 897 F.2d 134 (4th Cir.1990). These courts have held that Guideline § 5G1.3 is reconcilable with 18 U.S.C. § 3584(a) because § 5G1.3 does not preclude a court from departing from the Guidelines and sentencing concurrently. The Guidelines provide generally for two methods of downward departure. First, “the particular guideline at issue may suggest circumstances or factors that, if present, may provide the basis for departure.” Rogers, 897" }, { "docid": "8362130", "title": "", "text": "concurrent term. Section 5G1.3 of the 1987 guidelines, under which Kezerle was sentenced, provided: If at the time of sentencing, the defendant is already serving one or more unexpired sentences, then the sentences for the instant offense(s) shall run consecutively to such unexpired sentences, unless one or more of the instant offense(s) arose out of the same transactions or occurrences as the unexpired sentences. In the latter ease, such instant sentences and the unexpired sentences shall run concurrently.... (Emphasis added.) The mandatory language of this guideline is in tension with 18 U.S.C. § 3584(a), which gives the district court discretion as to whether to run sentences concurrently or consecutively. Section 3584(a) provides (in relevant part): [I]f a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively. ... (Emphasis added). Although we have not had the opportunity to resolve the apparent tension between the 1987 version of U.S.S.G. § 5G1.3 and 18 U.S.C. § 3584(a), we have held in other eases that where the sentencing guidelines conflict with a federal statute, the latter controls. See, e.g., United States v. Holloway, 991 F.2d 370, 374 (7th Cir.1993). Similarly, those circuits that have directly addressed the tension between the 1987 version of U.S.S.G. § 5G1.3 and 18 U.S.C. § 3584(a) have generally reconciled the two provisions by holding that although § 5G1.3 creates a presumption in favor of consecutive sentences, a district court retains the discretion to depart from § 5G1.3 and impose concurrent sentences. See United States v. Flowers, 995 F.2d 315, 317 (1st Cir.1993); United States v. Shewmaker, 936 F.2d 1124, 1128 (10th Cir.1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 884, 116 L.Ed.2d 788 (1992); United States v. Pedrioli, 931 F.2d 31, 32 (9th Cir.1991); United States v. Stewart, 917 F.2d 970, 972 (6th Cir.1990); United States v. Miller, 903 F.2d 341, 349 (5th Cir.1990); United States v. Rogers, 897 F.2d 134, 136-37 (4th Cir.1990); United States v. Fossett, 881. F.2d 976, 980 (11th Cir.1989). But see United States v. Nottingham, 898 F.2d 390," }, { "docid": "23521393", "title": "", "text": "issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(1) ... (Duties of the Commission).” The Sentencing Commission issued U.S.S.G. § 5G1.3 under the authority of 28 U.S.C. § 994(a)(1)(D). Pursuant to 28 U.S.C. § 994(b)(1), however, the Commission must make the guidelines consistent with Title 18, including section 3584. We must attempt to interpret these provisions in a manner that gives effect to them all, if possible. See Mountain States Tel. & Tel. Co. v. Santa Ana, 472 U.S. 237, 249-50, 105 S.Ct. 2587, 2594-95, 86 L.Ed.2d 168 (1985); United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 519-20, 99 L.Ed. 615 (1955). We have previously noted the existence of a potential conflict between the guideline and the statute, but found it unnecessary to resolve the issue. United States v. Creed, 897 F.2d 963, 965 (8th Cir.1990); United States v. Smitherman, 889 F.2d 189 (8th Cir.1989), cert. denied, 494 U.S. 1036, 110 S.Ct. 1493, 108 L.Ed.2d 629 (1990). A number of courts have addressed this issue, and the majority have concluded that section 3584 and U.S.S.G. § 5G1.3 can be harmonized. See, e.g., United States v. Shewmaker, 936 F.2d 1124, 1127-28 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 884, 116 L.Ed.2d 788 (1992); United States v. Stewart, 917 F.2d 970, 972-73 (6th Cir.1990); United States v. Miller, 903 F.2d 341, 345-49 (5th Cir.1990); United States v. Rogers, 897 F.2d 134, 136-37 (4th Cir.1990); United States v. Fossett, 881 F.2d 976, 980 (11th Cir.1989). These courts hold that “§ 5G1.3 is reconcilable with 18 U.S.C. § 3584(a) because § 5G1.3 does not preclude a court from departing from the Guidelines.” Shewmaker, 936 F.2d at 1127; see also Miller, 903 F.2d at 349; Rogers, 897 F.2d at 137; Fossett, 881 F.2d at 980. The Ninth Circuit, which had held to the contrary in Wills, recently adopted this view and requires district courts to follow guidelines departure procedures to impose consecutive rather than overlapping sentences under U.S.S.G. §§ 5G1.2 and 3D1.2. See United States v. Pedrioli, 931 F.2d 31, 32 (9th Cir.1991). Additionally, as the Ninth Circuit" }, { "docid": "17465633", "title": "", "text": "are not legislative enactments but do have the force of law. The guidelines must be consistent with all pertinent provisions of Titles 18 and 28 of the United States Code. 28 U.S.C. § 994(a). Among the many duties imposed upon the Sentencing Commission is the obligation to include in the guidelines “a determination whether multiple sentences to terms of imprisonment should be ordered to run concurrently or consecutively.” 28 U.S.C. § 994(a)(1)(D). Guideline § 5G1.3 appears to have been written in response to this statutory directive. Several courts of appeals have dealt with the issue now before us. In United States v. Wills, 881 F.2d 823 (9th Cir.1989), the court ruled, in effect, that § 5G1.3 is invalid to the extent that it attempts to remove a sentencing judge’s discretion to impose a concurrent sentence for an offense committed while the defendant is serving an unexpired sentence of imprisonment. The court held that “a judge has discretion to impose a concurrent or consecutive sentence, as a matter of law, under section 3584(a).” Id. at 826. Similarly, in United States v. Nottingham, 898 F.2d 390, 394 (3d Cir.1990), the court stated that “the guidelines on this subject must be consistent with 18 U.S.C. § 3584(a), the only statutory section exclusively directed to the issue of consecutive and concurrent sentences for offenses committed during an unexpired term.” Relying in part on the 1989 amendment to § 5G1.3 and the Sentencing Commission’s rationale for the amendment, the court found that “[ujnlike the commission of a crime while serving a term of imprisonment (while on escape), the commission of a crime on parole does not mandate a consecutive sentence.” Id. at 395. Therefore, the court concluded that the district court could have imposed either concurrent or consecutive sentences in that case. Id. at 396. On the other hand, beginning with United States v. Fossett, 881 F.2d 976 (11th Cir.1989), at least three courts of appeals have concluded that Guideline § 5G1.3 and 18 U.S.C. § 3584 can be reconciled. See Fossett; United States v. Rogers, 897 F.2d 134 (4th Cir.1990); and United States v." }, { "docid": "23521394", "title": "", "text": "that section 3584 and U.S.S.G. § 5G1.3 can be harmonized. See, e.g., United States v. Shewmaker, 936 F.2d 1124, 1127-28 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 884, 116 L.Ed.2d 788 (1992); United States v. Stewart, 917 F.2d 970, 972-73 (6th Cir.1990); United States v. Miller, 903 F.2d 341, 345-49 (5th Cir.1990); United States v. Rogers, 897 F.2d 134, 136-37 (4th Cir.1990); United States v. Fossett, 881 F.2d 976, 980 (11th Cir.1989). These courts hold that “§ 5G1.3 is reconcilable with 18 U.S.C. § 3584(a) because § 5G1.3 does not preclude a court from departing from the Guidelines.” Shewmaker, 936 F.2d at 1127; see also Miller, 903 F.2d at 349; Rogers, 897 F.2d at 137; Fossett, 881 F.2d at 980. The Ninth Circuit, which had held to the contrary in Wills, recently adopted this view and requires district courts to follow guidelines departure procedures to impose consecutive rather than overlapping sentences under U.S.S.G. §§ 5G1.2 and 3D1.2. See United States v. Pedrioli, 931 F.2d 31, 32 (9th Cir.1991). Additionally, as the Ninth Circuit recognized: Reading § 3584(a) to provide the district court with absolute discretion to ignore the guidelines would thus render nugatory the guidelines’ recommendations as to when sentences should run concurrently or consecutively. It would also work to reintroduce sentencing disparities that the guidelines seek to reduce. In light of the fact that § 3584(a) was passed along with the enabling legislation for the guidelines, we should not presume that Congress intended that section to provide district courts with sentencing discretion to ignore the guidelines. Pedrioli, 931 F.2d at 33. This approach follows long standing rules of statutory construction. “When general and specific statutory provisions apparently contradict, it is well-established that the two may exist together, the specific provision qualifying or limiting the general. In this instance, Guideline § 5G1.3, enacted pursuant to 28 U.S.C. § 994, merely qualifies § 3584(a) by requiring the court to consider Guideline departure” before deviating from a sentence mandated by section 5G1.3. Shewmaker, 936 F.2d at 1128 (citations omitted). We adopt the majority view and hold that sentencing courts do" }, { "docid": "23151342", "title": "", "text": "122, 12 L.Ed. 1009 (1850). See also Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 2241, 104 L.Ed.2d 923 (1989). And “‘a statute should be interpreted so as not to render one part inoperative.’ ” Mountain States Tel. & Tel. Co. v. Santa Ana, 472 U.S. 237, 249, 105 S.Ct. 2587, 2594, 86 L.Ed.2d 168 (1985) (quoting Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 684, 58 L.Ed.2d 596 (1979)). The Wills approach renders the delegation to the Sentencing Commission, 28 U.S.C. § 994(a)(1)(D), inoperative when 18 U.S.C. § 3584(a) is involved. Moreover, § 3584(a) is a general provision concerning concurrent or consecutive sentences, and § 3584(b) and what it incorporates (28 U.S.C. § 994(a)(1)(D) and Guideline § 5G1.3) are specific provisions. When general and specific statutory provisions apparently contradict, it is well-established that the two may exist together, the specific provision qualifying or limiting the general. See Townsend v. Little, 109 U.S. 504, 512, 3 S.Ct. 357, 362-63, 27 L.Ed. 1012 (1883). In this instance, Guideline § 5G1.3, enacted pursuant to 28 U.S.C. § 994, merely qualifies § 3584(a) by requiring the court to consider Guideline departure before sentencing concurrently. Finally, it is preferable to harmonize apparently conflicting statutes, so as to give effect to both. See United States v. Moore, 95 U.S. 760, 763, 24 L.Ed. 588 (1877). We think the better reasoned approach is to harmonize the provisions of the Act. Therefore, we adopt the Fosset approach. In sum, the rationale we have adopted harmonizes § 3584(a) and Guideline § 5G1.3 by providing that, when an offense is committed during the term of a previously imposed sentence, the new sentence must run consecutively to the old unless the court determines that Guideline departure is appropriate. See Fosset, 881 F.2d at 980. Defendant committed the instant offense while he was on escape status from the earlier twenty-five year concurrent sentences imposed by federal district court in Georgia. Therefore, we hold that the district court erred in sentencing defendant concurrently with the earlier sentences without considering whether Guideline departure was appropriate. Regarding the five-year sentence" }, { "docid": "13645487", "title": "", "text": "did not commit the instant offense while serving that sentence, the court has discretion to sentence concurrently or consecutively. U.S.S.G. § 5G1.3 comment (Nov. 1989). Ill Several courts have considered the question whether, in light of the mandatory language in Guideline § 5G1.3, district courts nevertheless retain discretion under 18 U.S.C. § 3584(a) to impose a second sentence concurrent with the unexpired term of an earlier sentence. Each court that has addressed the question has concluded that district courts retain discretion to direct that a second sentence run concurrently with the unexpired term of an earlier sentence. See, e.g., United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989); United States v. Wills, 881 F.2d 823, 826 (9th Cir.1989); United States v. Fossett, 881 F.2d 976, 980 (11th Cir.1989). Though courts have uniformly concluded that district courts retain discretion to sentence concurrently or consecutively, different reasoning has been adopted to reach that result. The court in Wills perceived a basic conflict between Guideline § 5G1.3 and 18 U.S.C. § 3584(a) and resolved that conflict by holding that the guideline could not eliminate the discretion unambiguously conferred by the statute. Wills, 881 F.2d at 825-27. In Fossett, the court indicated that a district court could impose a second sentence concurrent to the unexpired term of an earlier sentence “only if the court had followed the procedures for departing from the sentencing guidelines.” Fossett, 881 F.2d at 980; see also Smitherman, 889 F.2d at 191 (noting that departure from guidelines is possible, but also that district court shall take into consideration seven factors enumerated in § 3553(a)). We think that the departure analysis applied in Fossett, and followed by some district courts, see United States v. Bell, 716 F.Supp. 1207, 1214 (D.Minn.1989); see also United States v. Scott, CR No. JH-87-0570, 1988 WL 142126 (D.Md. May 23, 1988), properly reconciles the statutory discretion given to district courts in 18 U.S.C. § 3584(a) with the statutory mandate to the Sentencing Commission to promulgate guidelines to be used by courts in determining whether to sentence concurrently or consecutively. See also United States v. Mendez," }, { "docid": "23151341", "title": "", "text": "F.2d at 137. Second, the court retains discretion to depart, subject to review, if it determines that factors relevant to the sentencing have not been addressed adequately by the Guidelines. See id.; 18 U.S.C. §§ 3553(b) and 3742(e)(3); U.S.S.G., Ch. 1, Pt. A, intro, at 4(b), and § 5K2.0. See also United States v. Maldonado-Campos, 920 F.2d 714, 719-20 (10th Cir.1990). All of the statutes involved in this analysis, 18 U.S.C. § 3553, 18 U.S.C. § 3584, and 28 U.S.C. § 994 were enacted as part of the Sentencing Reform Act of 1984. In resolving the apparent tension among the statutes, we are guided by well-established canons of statutory construction. “ ‘In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.’ ” Mastro Plastics Corp. v. Labor Board, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956) (quoting United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122, 12 L.Ed. 1009 (1850). See also Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 2241, 104 L.Ed.2d 923 (1989). And “‘a statute should be interpreted so as not to render one part inoperative.’ ” Mountain States Tel. & Tel. Co. v. Santa Ana, 472 U.S. 237, 249, 105 S.Ct. 2587, 2594, 86 L.Ed.2d 168 (1985) (quoting Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 684, 58 L.Ed.2d 596 (1979)). The Wills approach renders the delegation to the Sentencing Commission, 28 U.S.C. § 994(a)(1)(D), inoperative when 18 U.S.C. § 3584(a) is involved. Moreover, § 3584(a) is a general provision concerning concurrent or consecutive sentences, and § 3584(b) and what it incorporates (28 U.S.C. § 994(a)(1)(D) and Guideline § 5G1.3) are specific provisions. When general and specific statutory provisions apparently contradict, it is well-established that the two may exist together, the specific provision qualifying or limiting the general. See Townsend v. Little, 109 U.S. 504, 512, 3 S.Ct. 357, 362-63, 27 L.Ed. 1012 (1883). In this instance, Guideline § 5G1.3, enacted pursuant" }, { "docid": "11555951", "title": "", "text": "that the Sentencing Commission does not presently agree with the government’s position. Cf. United States v. Cianscewski, 894 F.2d 74, 78 (3d Cir.1990) (quoting United States v. Ofchinick, 877 F.2d 251, 257 n. 9 (3d Cir.1989) (“Inasmuch as the amendment to the guideline is intended to clarify the existing guideline, we may give it substantial weight in determining the meaning of the existing guideline.”) (footnote omitted)). As we have noted, other Courts of Appeals have addressed this issue. In United States v. Wills, 881 F.2d 823 (9th Cir.1989), the court determined that guideline 5G1.3 conflicted with § 3584(a). Id. at 825. Despite the mandatory language of guideline 5G1.3, the court held, “a judge has discretion to impose a concurrent or consecutive sentence, as a matter of law, under section 3584(a).” Id. at 826. The court analyzed the sentencing statutory scheme: We hold that a judge has discretion to impose a concurrent or consecutive sentence, as a matter of law, under section 3584(a). First, section 3584(a) unambiguously confers that discretion upon the trial judge. Although section 994(a)(1)(D) apparently would allow the Commission to eliminate the discretion, section 994(b)(1) requires that the Commission’s guidelines be consistent with the provisions of Title 18, which include section 3584(a). If the guidelines are to be consistent with Title 18, the discretion cannot be taken away. Second, although the language of the guidelines would deprive the judge of discretion, the Sentencing Commission’s commentary suggests that the guidelines are not meant to change section 3584(a), but rather to reflect it. Also, under this reading of the statutes, the sentencing scheme is internally consistent. A contrary construction of these provisions maximizes conflict, since it would pit section 994(a)(1)(D) and guideline 5G1.3, which would eliminate judicial discretion, against sections 994(b)(1) and 3584(a), which would allow it. No statutory provision can be said to control over the other because enacted last in time; all the statutes were part of the Comprehensive Crime Control Act, ... Id. at 826 (footnote omitted). In United States v. Fossett, 881 F.2d 976 (11th Cir.1989), the court came to a different conclusion. In this case," }, { "docid": "17187927", "title": "", "text": "Commission's following statement: \"Reason for Amendment: This amendment specifies circumstances in which a consecutive sentence is required by the guidelines. Erroneous language in the Commentary to this guideline concerning 18 U.S.C. § 3584(a) is deleted.” Amendment of Guideline § 5G1.3, 54 Fed.Reg. 21,383 (1989); see U.S.S.G. App. C, ¶289, at 150 (Nov.1989). .While their theoretical approaches have differed, ten circuit courts of appeal have concluded that appellate review of a sentencing court’s discretionary refusal to depart downward from the Guidelines is generally unavailable. See United States v. Ortez, 902 F.2d 61, 63-64 (D.C.Cir.1990); United States v. Davis, 900 F.2d 1524, 1529-30 (10th Cir.1990); United States v. Morales, 898 F.2d 99, 101 (9th Cir.1990); United States v. Bayerle, 898 F.2d 28, 30 (4th Cir.), petition for cert. filed, 58 U.S.L.W. 3819 (U.S. June 7, 1990) (89-1934); United States v. Evidente, 894 F.2d 1000, 1003 (8th Cir.), cert. denied, — U.S. -, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990); United States v. Denardi, 892 F.2d 269, 272 (3d Cir.1989); United States v. Tucker, 892 F.2d 8, 11 (1st Cir.1989); United States v. Draper, 888 F.2d 1100, 1105 (6th Cir.1989); United States v. Franz, 886 F.2d 973, 978 (7th Cir.1989); United States v. Fossett, 881 F.2d 976, 979 (11th Cir.1989); see also United States v. Rojas, 868 F.2d 1409, 1410 (5th Cir.1989) (\"A claim that the district court refused to depart from the guidelines and imposed a lawful sentence provides no ground for relief.”)." }, { "docid": "17465634", "title": "", "text": "Similarly, in United States v. Nottingham, 898 F.2d 390, 394 (3d Cir.1990), the court stated that “the guidelines on this subject must be consistent with 18 U.S.C. § 3584(a), the only statutory section exclusively directed to the issue of consecutive and concurrent sentences for offenses committed during an unexpired term.” Relying in part on the 1989 amendment to § 5G1.3 and the Sentencing Commission’s rationale for the amendment, the court found that “[ujnlike the commission of a crime while serving a term of imprisonment (while on escape), the commission of a crime on parole does not mandate a consecutive sentence.” Id. at 395. Therefore, the court concluded that the district court could have imposed either concurrent or consecutive sentences in that case. Id. at 396. On the other hand, beginning with United States v. Fossett, 881 F.2d 976 (11th Cir.1989), at least three courts of appeals have concluded that Guideline § 5G1.3 and 18 U.S.C. § 3584 can be reconciled. See Fossett; United States v. Rogers, 897 F.2d 134 (4th Cir.1990); and United States v. Miller, 903 F.2d 341 (5th Cir.1990). In these decisions the courts held that while § 5G1.3 is valid, a sentencing court does retain the discretion to impose a concurrent sentence upon a defendant who commits a new, unrelated offense while serving an unexpired term. See Fossett, 881 F.2d at 980; Rogers, 897 F.2d at 138; Miller, 903 F.2d at 349. The court reasoned in Miller that § 5G1.3 precludes the imposition of a concurrent sentence in such a situation within the guidelines but, by exercising its general discretion to depart from the guidelines, a sentencing court may impose a concurrent sentence even in the situation described in § 5G1.3. 903 F.2d at 345. In adopting the reconciling approach, the Rogers court referred to the liberal departure policy of the guidelines and noted that there are two different kinds of departure under the guidelines: The guidelines’ liberal departure policy is drawn from § 3553(b), and reflects a conscious decision by the Commission not to limit, with a few specific exceptions, the factors that could constitute grounds" }, { "docid": "8362131", "title": "", "text": "eases that where the sentencing guidelines conflict with a federal statute, the latter controls. See, e.g., United States v. Holloway, 991 F.2d 370, 374 (7th Cir.1993). Similarly, those circuits that have directly addressed the tension between the 1987 version of U.S.S.G. § 5G1.3 and 18 U.S.C. § 3584(a) have generally reconciled the two provisions by holding that although § 5G1.3 creates a presumption in favor of consecutive sentences, a district court retains the discretion to depart from § 5G1.3 and impose concurrent sentences. See United States v. Flowers, 995 F.2d 315, 317 (1st Cir.1993); United States v. Shewmaker, 936 F.2d 1124, 1128 (10th Cir.1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 884, 116 L.Ed.2d 788 (1992); United States v. Pedrioli, 931 F.2d 31, 32 (9th Cir.1991); United States v. Stewart, 917 F.2d 970, 972 (6th Cir.1990); United States v. Miller, 903 F.2d 341, 349 (5th Cir.1990); United States v. Rogers, 897 F.2d 134, 136-37 (4th Cir.1990); United States v. Fossett, 881. F.2d 976, 980 (11th Cir.1989). But see United States v. Nottingham, 898 F.2d 390, 393-94 (3d Cir.1990) (holding that U.S.S.G. § 5G1.3 and 18 U.S.C. § 3584(a) are in direct conflict, and that § 3584(a) therefore controls). Thus, if Kezerle were correct that the district judge believed that § 5G1.3 stripped him of authority to impose a concurrent sentence, his argument might have merit. The record does not, however, support Kezerle’s claim that the district judge misunderstood the discretion he possessed. First, Kezerle’s sentencing memorandum clearly explained that the court had discretion under § 3584(a) to impose either a consecutive or concurrent sentence. At his sentencing hearing, the judge said, “I have read [Kez-erle’s sentencing memorandum]. Actually, I have reread it.” Moreover, the judge did not ask for any legal argument from the govem ment on this issue, which strongly suggests that he did not disagree with Kezerle’s position that he had discretion in the matter. Finally, it should be noted that the government didn’t argue that the judge’s hands were tied as its attorney seems to have accepted the view that the judge had discretion. Also, the district" }, { "docid": "23673814", "title": "", "text": "must retain some discretion as to whether to impose consecutive or concurrent sentences. See United States v. Nottingham, 898 F.2d 390, 393-96 (3d Cir.1990); United States v. Rogers, 897 F.2d 134 (4th Cir.1990); United States v. Wills, 881 F.2d 823, 826 (9th Cir.1989); United States v. Fossett, 881 F.2d 976, 980 (11th Cir.1989). The courts diverge, though, when they reach the question of whether the grant of discretion made by section 3584(a) is sufficiently unambiguous and unconditional that any limitation upon that discretion imposed by section 5G1.3 is contrary to law. The Eleventh Circuit in Fossett allows discretion to be retained by the district court only through the mechanism of departure from the guidelines. 881 F.2d at 980 (“On the facts of this case, the district court could have ordered appellant to serve her sentences concurrently only if the court had followed the procedures for departing from the sentencing guidelines.”). The court’s argument is quite simply that, while section 3584(a) grants discretion to the courts, section 3584(b) requires the court to consider the factors listed in section 3553(a), which include the following: The kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines that are issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and that are in effect on the date that the defendant is sentenced. Therefore, while section 3584(a) vests the district court with discretion as to whether to impose consecutive or concurrent sentences, that section also requires that the court “shall consider” the guidelines. Moreover, 28 U.S.C. § 994(a)(1)(D) states that the guidelines are for use of the sentencing court in making “a determination whether multiple sentences to terms of imprisonment should be ordered to run concurrently or consecutively.” The Fourth Circuit in Rogers explicitly followed the Eleventh Circuit’s view, noting that several district courts have adopted the Fossett reasoning as well. The court in Rogers observed, in further support for the Fossett conclusion, that the commentary to section 5G1.3 explicitly provided that “[departure would be warranted when independent" }, { "docid": "23673830", "title": "", "text": "that no injury occurred in the course of committing so many bank robberies, the sentencing guidelines do consider the occurrence of injuries in the course of bank robberies and would have provided for an increased offense level had such injuries occurred. See Guidelines § 2B3.1(b)(3). Possibly, the injury to Miller’s wife could have been an aggravating factor, but the court specifically said that it did not take that into account. Hence, this also cannot be a basis for departure. Therefore, we VACATE Miller’s sentence and REMAND to the district court for resentencing. The court may choose either to impose a sentence within the guideline range or to provide additional reasons justifying its departure from the guidelines. . The trial court stated, \"You have different victims here. You have different places, and I think that the [presentence investigation] report correctly groups these various offenses, and that they are separate offenses. And I will so consider them.” . In a recent case, United States v. Schmude, 901 F.2d 555 (7th Cir.1990), the court discussed § 3584(a) and § 5G1.3 together, but only in the context of the newly amended § 5G1.3, from which the potentially conflicting language (under which Miller was sentenced) has now been removed. The Eighth Circuit in United States v. Creed, 897 F.2d 963, 965 (8th Cir.1990), noticed the possible existence of a conflict between §§ 3584(a) and 5G1.3 but chose not to address it, deciding that the argument proffered by appellant was waived on other grounds. While the Eighth Circuit addressed the provisions in conjunction in United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1493, 108 L.Ed.2d 629 (1990), the issue of the instant case was not presented, because in Smitherman the court found that the district court had acted within its discretion in imposing consecutive sentences. Under the facts of that case, the court did not need to address whether the sentencing judge could have imposed concurrent sentences without departing from the guidelines. The court simply concluded that there certainly was not sufficient reason to require imposition of" } ]

[ { "docid": "22612108", "title": "", "text": "Mr. Justice Jackson delivered the opinion of the Court. The key issue in this case is whether statutes of the United States should be applied to this claim of maritime tort. Larsen, a Danish seaman, while temporarily in New York joined the crew of the Randa, a ship of Danish flag and registry, owned by petitioner, a Danish citizen. Larsen signed ship’s articles, written in Danish, providing that the rights of crew members would be governed by Danish law and by the employer’s contract with the Danish Seamen’s Union, of which Larsen was a member. He was negligently injured aboard the Randa in the course of employment, while in Havana harbor. Respondent brought suit under the Jones Act on the law side of the District Court for the Southern District of New York and demanded a jury. Petitioner contended that Danish law was applicable and that, under it, respondent had received all of the compensation to which he was entitled. He also contested the court’s jurisdiction. Entertaining the cause, the court ruled that American rather than Danish law applied, and the jury rendered a verdict of $4,267.50. The Court of Appeals, Second Circuit, affirmed. Its decision, at least superficially, is at variance with its own earlier ones and conflicts with one by the New York Court of Appeals. We granted certiorari. The question of jurisdiction is shortly answered. A suit to recover damages under the Jones Act is in per-sonam against the ship’s owner and not one in rem against the ship itself. The defendant appeared generally, answered and tendered no objection to jurisdiction of his person. As frequently happens, a contention that there is some barrier to granting plaintiff’s claim is cast in terms of an exception to jurisdiction of subject matter. A cause of action under our law was asserted here, and the court had power to determine whether it was or was not well founded in law and in fact. Cf. Montana-Dakota Co. v. Public Service Co., 341 U. S. 246, 249. Denmark has enacted a comprehensive code to govern the relations of her shipowners to ■" } ]

[ { "docid": "8280782", "title": "", "text": "all relevant times it was owned by the defendant Universal Lines, S.A. (hereinafter Universal Lines) and operated by the defendant Universal Cruise Lines, S.A. (hereinafter Universal Cruise) both Panamanian corporations. On January 10, 1969, the plaintiff and other crew members signed standard-form Panamanian articles while the vessel was in Naples, Italy. On January 22, 1969, when the Caribia was again in Naples, the plaintiff and other crew members executed an agreement which made reference to employment under the terms of the Greek Collective Bargaining Agreement with regard to working conditions and wages. Both of these documents were executed in the presence of the Panamanian Consul in Naples. The S/S Caribia arrived in the Port of New York on February 13, 1969 and departed for her first Caribbean cruise the next day. On February 28, 1969, the vessel was again in New York for a period of several hours before departing on a second cruise. On March 5, 1969, the plaintiff was injured while working in the ship’s generator room, at a time when the vessel was on the high seas, some five hours out of the Port of St. Thomas, Virgin Islands. The plaintiff was treated for his injuries at a St. Thomas hospital and was subsequently flown to New York and, thereafter, repatriated to Greece. The court must proceed with its inquiry into the choice of law issue presented in accordance with the seven factor approach set out by the Supreme Court in the landmark case of Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953). The seven enumerated Lauritzen factors are: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured party; (4) the allegiance of the defendant shipowner; (5) the place of the contract; (6) the inaccessibility of the foreign forum; and (7) the law of the forum. The Lauritzen test is not satisfied by a mechanical counting of contacts. Hellenic Lines v. Rhoditis, 398 U.S. 306, 308, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). Rather, the court must utilize the seven" }, { "docid": "15460151", "title": "", "text": "PER CURIAM: Libellant-appellant, Dimitrios Garis, employed as a fireman aboard respondent’s vessel, the S.S. “Eurytan,” was severely burned on September 15, 1965, in an explosion in the engine room of the vessel which was en route from Europe to Australia. He had joined the ship, owned by the defendant Panamanian corporation, at the Port of Rotterdam, Holland, on May 27, 1965, at which time he was required to sign Articles which provided that claims for injuries would be governed by Greek law and the Greek Collective Agreement, and that every claim or dispute arising from an injury would be under the exclusive jurisdiction of the Greek courts. These Articles were opened and renewed in New York City on June 10, 1965. He commenced this suit in the admiralty, to recover damages for the injuries he suffered, in the United States District Court for the Southern District of New York, and the citation upon defendant to answer was served upon P. D. Marchessini & Co. (New York) Inc., a New York corporation, at its office at 26 Broadway, New York City. On the ground that discretionary jurisdiction should be declined, the owner of the vessel moved for an order dismissing the libel. Affidavits and answers to interrogatories confirmed that the shipowner conducted its principal business in Piraeus, Greece, and that its officers and directors were Greek residents, none of whom lived in the United States. An affidavit of Theo Kallitsas, director of the Mercantile Marine Department of the Greek Consulate General, New York City, presented in support of the motion, confirmed that the vessel is registered under the laws of Greece, flies the Greek flag, that libellant is a resident of Greece, and that the Courts of Greece have jurisdiction over and will accept suits by seamen against Greek flag ships. Judge McLean further directed that the parties conduct the deposition of an officer of P. D. Marchessini & Co. (New York) Inc. Alexander P. Marchessini, President of this New York corporation, appeared, represented by his own counsel, testified that he was an American citizen, that his company acted as ships’" }, { "docid": "23544184", "title": "", "text": "in a United States port aboard a Greek flag vessel owned by a Greek corporation. Under the Lauritzen test, four factors favored the defendant shipowner and against the retention of jurisdiction. Yet, since it was determined that the defendant had a substantial base of operations in the United States, the court decided that United States law should apply, despite the fact that the factors delineated in Lauritzen would suggest otherwise. . The contract also included a provision that Greek law and Greek courts would exclusively determine rights under the employment contract including claims on account of illness or accident. A similar agreement was disregarded as of little relevance in Rhoditis, in its determination that the American Jones Act afforded a remedy to a Greek seaman under circumstances similar to the present. Probably due to the disparity in bargaining power between the seaman and his employer, American courts have generally accorded little determinative weight to such contractual choice of law provisions. G. Gilmore and C. Black, The Law of Admiralty 476 (2d ed. 1975). . The plaintiffs argue that the Liberian and Panamanian incorporations by the Greek nationals, presumably adopted to avoid application of some Greek laws, should not be selectively disregarded at the option of the defendant corporations, solely urged to require the application of Greek law and to defeat the application of American law to the plaintiffs’ claim. . In arguing that a Greek forum is not accessible, the plaintiffs rely upon expert evidence to the effect that, under Greek law, the domicile of the corporations (not of the stockholders) (see note 14 supra) determines personal jurisdiction, and that an agreement between parties to confer jurisdiction on Greek courts (see note 13 supra) is not enforceable in Greece. . From external manifestations as of the time of the accident, the vessel had been purchased primarily to service the American grain trade. The defendants argue that the vessel’s post-accident use belied extensive service to and from American courts. However, we agree with the plaintiffs that the post-accident use of a foreign vessel previously used entirely in America should not be" }, { "docid": "23641331", "title": "", "text": "where the parties specifically contract as to governing law, “[e]xcept as forbidden by some public policy, the tendency of the law is to apply in contract matters the law which the parties intended to apply.” 345 U.S. at 588-589, 73 S.Ct. at 931, 97 L.Ed. at 1271. The contract in the instant case provided not only that Greek law would be determinative but also that the Greek courts were to be the proper forum for the litigation of claims arising, out of the contract. We see no reason, in the circumstances of this case, why this provision should not be given effect in the absence of any suggestion in the record that Greece is an inconvenient forum or that Greek law provides an inadequate remedy. Consequently, we hold that the district court did not abuse its discretion in declining jurisdiction. The judgment is affirmed. . A former appeal was dismissed for lack of a final order. Anastasiadis v. SS Little John (5 Cir. 1964) 339 F.2d 538. Subsequent to the dismissal of the appeal, the parties resubmitted the case to the district court, which entered a final order of dismissal on December 18, 1964. An appeal was perfected from this order, and, with the permission of this Court and by stipulation of the parties, the merits of the case were resubmitted on the same briefs and oral argument to the panel which heard arguments on the prior appeal. . In his original complaint the libelant alleged on information and belief that the vessel was of Liberian registry, although the appellee’s agents represented to him that it would be registered under the Lebanese flag. He further alleges that upon arrival he discovered that the vessel had no registry. Subsequently, it was actually registered under the Liberian flag. . An appeal from this order was dismissed. See footnote 1 supra." }, { "docid": "18758014", "title": "", "text": "contacts based on the seven Lauritzen criteria and determined that Greek law was applicable. It found that the place of the wrongful act was Senegal, the ship flew under a Greek flag, the injured seaman was Greek, the shipowner was nominally Liberian, the place of contract was Greece, Greek courts were accessible, the law of an American forum is inapplicable when defendants are involuntarily made parties, and the base of operations was disputed. The appellant argues that it was erroneous to consider the lex loci delicti commisi, the lex locus contractus, and the accessibility of the foreign forum which she claims have been “rejected” by the Supreme Court. She urges that this case is controlled by Rhoditis, which case held that the law of the flag is less persuasive when the vessel flag is of convenience. Instead we should look through the Greek facade and find that, since Lido Maritime is incorporated in Liberia, Liberian law controls. This is convenient for her, because Liberia by statute has adopted American court-made admiralty law as its own. Thus she presents us with a renvoi argument— apply the law of Liberia which in turn directs us to our own substantive jurisprudence. It is clear from the language of both Lauritzen and Rhoditis that the Court there pared away veneer legal formalisms that would otherwise shield owners from their own law. Here over 80% of the stock in the relevant corporations is held by Greeks, who exercise complete control over the day-to-day management of the ROYAL ODYSSEY. It is not the flag but the nation of incorporation that is of convenience. We can and do disregard that and find, contrary to the determination of the district court, that the allegiance of the owner is Greek, not Liberian. That buttresses the opinion below. Mrs. Sigalas also submits that we should be guided by the weight accorded in Rhoditis to what is in essence an eighth factor — the “actual operational contacts that this ship and this owner have with the United States.” 398 U.S. at 310, 90 S.Ct. at 1734. She couples that with a" }, { "docid": "14355949", "title": "", "text": "necessarily controlling, should be given substantial weight. Upon a consideration of all the circumstances the Court concludes that this is a case in which jurisdiction should be retained. We now turn to the choice of law issue. Although the parties are both nationals of Greece, neither has pleaded the law of Greece nor urged its adoption. The respondent presses the Court to apply the law of Liberia. It relies upon the doctrine known as “the law of the flag” and the case of Lauritzen v. Larsen, 1953, 345 U.S. 571, 73 S.Ct. 921, 929, 97 L.Ed. 1254. However, neither is dis-positive of the issue. While it has often been said that “a merchant ship is part of the territory of the country whose flag she flies,” this has been described by the Supreme Court as “a figure of speech, a metaphor” which “is chiefly applicable to ships on the high seas, where there is no terri torial sovereign; and as respects ships in foreign territorial waters it has little application beyond what is affirmatively or tacitly permitted by the local sovereign.” Thus we are left with the same basic question whether upon the facts in this case an American court will adopt a foreign law as its own in determining the rights of the parties. Lauritzen v. Larsen, upon which respondent relies to obtain the application of Liberian law, was an action by a foreign seaman under the Jones Act, 46 U.S.C.A. § 688. There the libelant and respondent were Danish citizens; the ship was of Danish flag and registry. The only United States contact was the signing of articles in New York City. These provided that the rights of crew members would be governed by Danish law. The libelant was injured in Havana, Cuba. The Court held that there was no jurisdiction under the Jones Act when the only United States contact was limited to the signing of the articles. In holding the Act inapplicable, the law of the flag was but one of the factors which was taken into account. The Court specified certain criteria to be considered" }, { "docid": "7893661", "title": "", "text": "maritime law of the United States is inapplicable in the absence of sufficient “points of contact” between the transaction or event sued upon and the United States. To determine the “points of contact” between the libellant’s injury and the United States, we turn to the facts in detail and the criteria for choice of law established in the two cases cited last above. The seaman-libellant is a Greek citizen, residing in Greece, to which he has returned, who possessed a Greek “seaman’s book” issued by the Greek government and who signed a “Seaman’s Contract” in the Greek language in Piraeus with “the Piraeus established company under the title of Meritine Co. Niarchos (Hellas) representing * * * and acting as agent and for account of the Bermuda established Co. and under the title Meritime Investment and Shipping Company, administrator” of the “World Luck” for service as a seaman on that vessel, or at the employer’s choice, “in any ship of the Niarchos group.” The vessel was owned by a Liberian corporation and flew the Liberian flag but the evidence shows as the “seaman’s contract” indicates that it was operated under some sort of arrangement, no details of which appear, as part of the Niarchos fleet whose initial it bore on its stack. The officers and crew of the vessel were all Greek citizens except the radio operator who was British, and the employment contract the seaman signed provided that it was “subject to the Hellenic law relative to vessels of the same capacity and of the Hellenic arbitrary contract concerning mercantile labor and the special mercantile regulations of the vessel.\" Furthermore the contract provided that any disagreement between the seamen and the employer concerning the execution and interpretation of the contract “or accruing in general for demands of the seaman from a case” would be “subject to the decision of the Piraeus Courts” excluding interference by any other court local or foreign. So far as appears the vessel did not call regularly at any United States port or ports nor is there anything to indicate that any United States citizen" }, { "docid": "23544161", "title": "", "text": "law. They point out that the ship flew a Greek flag and had Greek registry, that the deceased seaman was of Greek nationality and had signed his employment contract in Greece, and that the law of the American forum should not be applied simply because the accident occurred in an American port. They also point out that the defendants, although a Liberian corporation (the owner) and a Panamanian corporation (the operator), were owned entirely by three Greek shareholders. They rely additionally upon the circumstance that the decedent’s survivors had a remedy (in the nature of workmen’s compensation, as in Lauritzen) available to them in the Greek courts. The district court held, however, that it was instead appropriate to apply United States law to the consequences of this accident in an American port, to which a seaman had flown to join the vessel, and in which port he had worked during his entire service on the vessel prior to the fatal accident there. In rejecting the defendants’ substantial contention that Greek law should be applicable, the district court primarily relied upon as a determinative factor that, prior to the accident, the vessel’s entire service under its present ownership, and its entire revenues therefore to be earned, arose from a base of operations in the United States. Under the Rhoditis gloss on Lauritzen factors, this substantial use of a United States base of operations for the shipping and revenues of the vessel and its owner, together with the other United States contacts (the latter of which may not by themselves have been sufficient for the purpose), justified the choice of the Jones Act and of general maritime law as administered by American courts as a more appropriate basis for decision than the Greek compensation law. Rhoditis, supra, 398 U.S. 308, 90 S.Ct. at 1733 (entire income derived from cargo going to or coming from the United States);, Antypas v. Cia. Maritima San Basilio, S.A., 541 F.2d 307, 309-310 (2nd Cir. 1976) (most voyages to or from United States ports); Moneada v. Lemuria Shipping Corp., 491 F.2d 470, 473 (2nd Cir.), cert. denied," }, { "docid": "11798664", "title": "", "text": "The uncontroverted facts indicate that, although Celestial did perform some general duties for the vessel, it exercised no control over her master and crew. Celestial was not responsible for the hiring of crewmen; this was done by a company in Piraeus, Greece. Celestial had no power to fire and made no decisions concerning the deployment and supervision of the crew. Celestial’s absence of control over the vessel is reflected in Clause 2 of the General Authority section of the agency contract between Celestial and the ISABELLE, which states: Nothing in this Agreement is to be construed as giving the Agent [Celestial] control or possession of the Vessel or having any interest whatever in the business, profits, or liabilities resulting from the operation of the vessel. In light of the foregoing, and considering appellant’s failure to present any probative evidence indicating a conflict in material facts, we find that the trial court’s grant of summary judgment in favor of Celestial was correct and affirm. II. Cosmar’s Motion to Dismiss The trial judge granted Cosmar’s motion to dismiss based on forum non-conveniens, concluding the Jones Act was inapplicable. We agree. Whether the Jones Act applies to a given set of facts involves a question of choice of law. The Supreme Court directly addressed this issue in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), and Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). In Lauritzen, the injured seaman was Danish, the ship was registered under the Danish flag, and the owner of the ship was Danish. The ship’s articles were written in Danish and provided that the rights of crew members would be governed by Danish law and by the employer’s contract with the Danish Seamen’s Union, of which Larsen was a member. Larsen’s injury occurred while the vessel was in the Havana harbor. On these facts, the Supreme Court held that the trial court erred in applying the Jones Act to the case. The Court listed the following seven factors as relevant in resolving the choice of law question:" }, { "docid": "11798665", "title": "", "text": "dismiss based on forum non-conveniens, concluding the Jones Act was inapplicable. We agree. Whether the Jones Act applies to a given set of facts involves a question of choice of law. The Supreme Court directly addressed this issue in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), and Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). In Lauritzen, the injured seaman was Danish, the ship was registered under the Danish flag, and the owner of the ship was Danish. The ship’s articles were written in Danish and provided that the rights of crew members would be governed by Danish law and by the employer’s contract with the Danish Seamen’s Union, of which Larsen was a member. Larsen’s injury occurred while the vessel was in the Havana harbor. On these facts, the Supreme Court held that the trial court erred in applying the Jones Act to the case. The Court listed the following seven factors as relevant in resolving the choice of law question: (1) place of the wrongful act; (2) law of the flag; (3) allegiance or domicile of the injured seaman; (4) place of the contract; (5) allegiance of the defendant shipowner; (6) inaccessibility of a foreign forum; and (7) law of the forum. In Rhoditis, the injured seaman was a Greek citizen, the vessel was of Greek registry, the vessel’s owner was a Greek corporation and the articles, which were signed in Greece, provided that Greek law and a Greek collective bargaining agreement applied and that all claims arising out of the employment contract were to be adjudicated by a Greek court. The injury occurred while the vessel was in United States waters. In affirming the trial court’s application of the Jones Act to these facts, the Supreme Court first noted that the Lauritzen test was not a mechanical one, and the list of seven factors was not exhaustive. The Court held that the shipowner’s “base of operations” was another important factor in determining whether the Jones Act was applicable. The Court found that Hellenic Lines," }, { "docid": "12537528", "title": "", "text": "WALTER E. HOFFMAN, District Judge. Libellant, a Greek seaman holding a chief steward’s license, was injured on August 17, 1957, on board the steamship Orpheus, a Greek flag vessel owned by the respondent Panamanian corporation. The vessel was in the process of leaving the dock at Hamburg, Germany, when the accident occurred. As illegal advances of wages were made to libellant in United States ports, this Court exercised jurisdiction over the entire controversy following the arrest of the vessel at Norfolk, Virginia. The law of the flag must control the substantive rights of the parties in determining the action for personal injuries. Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254; Samad v. S. S. Etivebank, D.C., 134 F.Supp. 530. We look, therefore, to the substantive law of Greece. From the evidence presented on this subject in this particular case, there is no liability for injuries sustained by a seaman where the sole basis for recovery is the unsea-worthy condition of the vessel. A recovery may be had where negligence is established and, in such event, the contributory negligence serves to mitigate the damages. In summary, the right to recover for negligence is substantially the same under Greek law as in this country, but the doctrine of unseaworthiness is essentially unknown in Greece as giving rise to a cause of action for an injured seaman, unless, of course, what may be characterized as unseaworthiness is tantamount to negligence. Libellant contends that he was injured when, in boarding the vessel, he stepped upon the deck and, after taking several steps, slipped and fell due to coal dust and small particles of coal which remained on the deck following discharge operations. There is a sharp conflict in the evidence as to the details of the accident. Certain undisputed facts reveal that the vessel had docked at Hamburg on August 14, 1957, with its port side to the dock. She was loaded with coal and her five holds were discharged by the use of dock cranes and buckets. Discharge operations were completed at 2:30 p. m. on August 17, which" }, { "docid": "23544146", "title": "", "text": "TATE, Circuit Judge: The surviving widow and dependents of a Greek seaman killed on a foreign vessel in an American port were awarded damages in this wrongful death action, which was brought under the Jones Act and general maritime law. The defendants held liable (the shipowner Valsky, a Liberian corporation, and the ship operator Valmas, a Panamanian corporation) contend principally that the district court erred (a) in failing to grant a motion for dismissal based on forum non conveniens, (b) in applying United States rather than Greek law, and (c) by incorrectly computing the damage award. We find no reversible error and therefore affirm the judgment of the district court. FACTS The decedent, Dimitrios Kepessidis, a citizen of Greece, was hired in Greece as the chief engineer for the M-V AGIOS NICOLAOS V and joined the vessel in Beaumont, Texas, on May 22, 1976. The AGIOS NICOLAOS V is a Greek flag-flying and Greek registered vessel owned by defendant, Valsky Maritime, Ltd. (Valsky), a Liberian corporation. It is operated by the defendant Valmas Brothers Shipping, S.A. (Valmas), a Panamanian corporation. The vessel, which had recently been purchased from a Swedish vendor, was the only ship owned by Valsky. The AG-IOS NICOLAOS V had sailed to Beaumont (on its maiden voyage under Valsky) without any cargo. Its first business venture (and only one prior to the accident) was to pick up corn at a Beaumont grain elevator and to deliver it to the Soviet Union. On June 1, 1976, Chief Engineer Kepessidis, who had only nine days earlier joined the crew of the AGIOS NICOLAOS V, had gone to help one of the crew start the engine boilers. They were unsuccessful in three attempts. On the fourth attempt, the boiler exploded, and the decedent was burned. Despite being injured, the decedent proceeded to fight the fire, but the fire extinguisher he used was not in working order. In a further attempt to extinguish the blaze, members of the crew turned on the carbon dioxide system. In doing so, however, no one took a head count, and Chief Engineer Kepessidis was trapped" }, { "docid": "21427602", "title": "", "text": "THOMSEN, Chief Judge. Libelant is a Greek citizen residing in Greece. The Liberian S/T Darnie is owned by respondent, United Cross Navigation Corp., a Liberian corporation, whose stockholders are Greek nationals residing in Greece. The original libel, in rem against the Darnie and in personam with clause of foreign attachment against her owner, alleged four causes of action: (1) for personal injuries caused by negligence of respondents; (2) for negligent failure to provide proper medical care; (3) for personal injuries caused by unseaworthiness; and (4) for maintenance and cure. An amended libel added (5) a claim for wages and penalties under 46 U.S.C.A. §§ 596, 597. The immediate problem is whether this court, in the exercise of its discretion, should decline jurisdiction of the four claims or causes of action which comprised the original libel and which are included in the amended libel along with the wage claim. Libelant originally joined the Darnie in June 1957 in Bayonne, N. J., signing Liberian articles, but was discharged in Brazil in December 1957 for an operation. He rejoined the Darnie in January 1958 in Campana, Argentina, and signed new Liberian articles calling for wages at £42 per month, plus 50?5 per hour for overtime. On February 28, 1958, he signed a paper acknowledging receipt of wages in full to that date. On April 14 or April 15 he was injured at sea, while cleaning tanks. Libelant claims the accident occurred on April 14, while the vessel was within three miles of the Florida coast; respondents contend the accident occurred on April 15, more than three miles off shore. The exact location of the vessel at the time of the accident is unimportant in this case because, all circumstances considered, the law of the flag — Liberian law— controls. Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254; Romero v. Int’ Operating Co., 79 S.Ct. 468. There is a dispute about what libelant did or was required to do after the accident, but the vessel arrived in Baltimore on April 17, and libelant was promptly taken to the U.S.P.H.S. hospital." }, { "docid": "23641330", "title": "", "text": "Brooklyn since signing on and had signed a declaration of intention to become an American citizen; his claim was for personal injuries under the Jones Act and was not essentially ex contractu; there was no agreement as to what law would govern in the event of injury and no stipulation as to the forum. Also, the voyage began and ended in the United States. As noted in Lauritzen, the lex loci delicti test in maritime tort cases is necessarily of limited application “because of the varieties of legal authority over waters [a ship] may navigate.” 345 U.S. 571, 583, 73 S.Ct. 921, 929, 97 L.Ed. 1254, 1268. Therefore, the Supreme Court declined to apply the Jones Act solely on the basis of lex loci delicti commissi. We do not think it an abuse of the trial court’s discretion to refuse to accord it controlling weight here. In summary, we agree with the district court that an analysis of the contacts in this case militate against the assumption of jurisdiction. As the Court recognized in Lauritzen, where the parties specifically contract as to governing law, “[e]xcept as forbidden by some public policy, the tendency of the law is to apply in contract matters the law which the parties intended to apply.” 345 U.S. at 588-589, 73 S.Ct. at 931, 97 L.Ed. at 1271. The contract in the instant case provided not only that Greek law would be determinative but also that the Greek courts were to be the proper forum for the litigation of claims arising, out of the contract. We see no reason, in the circumstances of this case, why this provision should not be given effect in the absence of any suggestion in the record that Greece is an inconvenient forum or that Greek law provides an inadequate remedy. Consequently, we hold that the district court did not abuse its discretion in declining jurisdiction. The judgment is affirmed. . A former appeal was dismissed for lack of a final order. Anastasiadis v. SS Little John (5 Cir. 1964) 339 F.2d 538. Subsequent to the dismissal of the appeal, the" }, { "docid": "23220199", "title": "", "text": "the -flag and articles. The ship was owned by a Liberian corporation, all of whose stock was owned by Greek and American citizens. The orders directing the movements of the vessel came partly from the American and partly from the Greek owners. The members of the crew were residents of Greece, except for two residents of the United States. - The injury occurred in an American port. In fact, the vessel had. never, in any of its voyages, visited a Hondurian port. We cannot, con-; fronted with such an absence of any significant contacts with Honduras, uphold the shipowner’s contention that Hondurian law should have been applied. The flag was nothing more than illusory. One further facet of this problem merits discussion. The record in this case reveals that the significant contacts were with two countries, the United States and Greece. However, neither side, either in the District Court or in this court, suggested that Greek law should have been applied, or introduced below any evidence of what the Greek law was. Under such circumstances, the question arises whether this court should on its own initiative examine the record to determine if sufficient contacts with the United States existed to permit a Jones Act suit, or whether, in the alternative, the case should be remanded for proof and' application of Greek law. However, we do not have to decide whether it would be appropriate for this court, to remand for the application of a country’s law neither contended for nor proven, for we.conclude that the District Court was not clearly in error in holding that the contacts with the United States were’ substantial enough to-warrant applying the Jones Act. The only evidence offered by the shipowner relevant to the applicability of the Jones Act consisted of answers to certain interrogatories propounded by the libellant and the testimony of Riley M. Gregory, a partner in Hasler & Company, the shipowner’s Norfolk agent. In the interrogatories, the shipowner, Southern Cross Steamship Company, was asked to state the names, addresses and citizenship of all stockholders or persons holding an interest in the company." }, { "docid": "23220198", "title": "", "text": "of the flag is to control, the flag must not be one of convenience merely but bona fide. Justice Jackson pointed out in Lauritzen, 345 U.S. at page 587, 73 S.Ct. at page 931: “But it is common knowledge that in recent years a practice has grown, particularly among American shipowners, to avoid stringent shipping laws by seeking foreign registration eagerly offered by some countries. Confronted with such operations, our courts on occasion have pressed beyond the formalities of more or less nominal foreign registration to enforce against American shipowners the obligations which our law places upon them.” Many cases, both before and after Lauritzen, have refused to enforce such nom inal foreign registration by' disregarding flags of convenience. Gerradin v. United Fruit Co., 2 Cir., 1932, 60 F.2d 927; Carroll v. United States, 2 Cir., 1943, 133 F.2d 690; Bartholomew v. Universe Tankships, Inc., 2 Cir., 1959, 263 F.2d 437; Zielinski v. Empresa Hondurena De Vapores, D.C.S.D.N.Y.1953, 113 F.Supp. 93 Turning to the present case, the 'only contacts the Margaritis had with Honduras were the -flag and articles. The ship was owned by a Liberian corporation, all of whose stock was owned by Greek and American citizens. The orders directing the movements of the vessel came partly from the American and partly from the Greek owners. The members of the crew were residents of Greece, except for two residents of the United States. - The injury occurred in an American port. In fact, the vessel had. never, in any of its voyages, visited a Hondurian port. We cannot, con-; fronted with such an absence of any significant contacts with Honduras, uphold the shipowner’s contention that Hondurian law should have been applied. The flag was nothing more than illusory. One further facet of this problem merits discussion. The record in this case reveals that the significant contacts were with two countries, the United States and Greece. However, neither side, either in the District Court or in this court, suggested that Greek law should have been applied, or introduced below any evidence of what the Greek law was. Under such circumstances," }, { "docid": "23544160", "title": "", "text": "contacts that this ship and this owner have with the United States” must be considered 398 U.S. at 310, 90 S.Ct. at 1734-35. The Rhoditis gloss on the Lauritzen tests indicate that the appropriate application of United States law to the foreign seaman’s suit depended on the substantiality of the contacts with the United States of the foreign defendant involved in the transaction. Lauritzen noted seven factors as significant for consideration: (1) Place of wrongful act; (2) Law of the flag; (3) Allegiance or domicile of the injured; (4) Allegiance of defendant shipowner; (5) Place of the contract; (6) Inaccessibility of foreign forum; and (7) Law of the forum. Rhoditis noted an eighth factor of importance, the shipowner’s “place of operations” indicating that otherwise an alien owner with substantial business operations in this country might, by escaping his obligations as a Jones Act “employer”, be unfairly advantaged over citizens of this country engaged in the same business. 398 U.S. at 309, 90 S.Ct. 1734. The defendants make an extremely strong case for application of Greek law. They point out that the ship flew a Greek flag and had Greek registry, that the deceased seaman was of Greek nationality and had signed his employment contract in Greece, and that the law of the American forum should not be applied simply because the accident occurred in an American port. They also point out that the defendants, although a Liberian corporation (the owner) and a Panamanian corporation (the operator), were owned entirely by three Greek shareholders. They rely additionally upon the circumstance that the decedent’s survivors had a remedy (in the nature of workmen’s compensation, as in Lauritzen) available to them in the Greek courts. The district court held, however, that it was instead appropriate to apply United States law to the consequences of this accident in an American port, to which a seaman had flown to join the vessel, and in which port he had worked during his entire service on the vessel prior to the fatal accident there. In rejecting the defendants’ substantial contention that Greek law should be applicable, the" }, { "docid": "14355948", "title": "", "text": "a threshold question presents itself as to whether the Court shall take jurisdiction of this action.’ While admiralty courts have jurisdiction of suits of a maritime nature between foreigners, the exercise of such jurisdiction is discretionary. Generally jurisdiction will be favorably exercised unless special circumstances indicate that justice would be better served by declining it. The Court here has Jurisdiction both of the respondent and the vessel. The vessel frequently calls at the port of New York. While it may, on scheduled Mediterranean cruises, call at Greek ports, it has apparently never docked in Liberia. Indeed other than the fact that it is documented under the laws of Liberia it appears to have no contacts there. The money was found on the vessel while it was moored in this port. Witnesses who may have knowledge of the facts are or will be available here. Finally, both parties agree that the matter can be litigated most economically and expeditiously within this jurisdiction, and their assent, in the absence of countervailing considerations of public policy, while not necessarily controlling, should be given substantial weight. Upon a consideration of all the circumstances the Court concludes that this is a case in which jurisdiction should be retained. We now turn to the choice of law issue. Although the parties are both nationals of Greece, neither has pleaded the law of Greece nor urged its adoption. The respondent presses the Court to apply the law of Liberia. It relies upon the doctrine known as “the law of the flag” and the case of Lauritzen v. Larsen, 1953, 345 U.S. 571, 73 S.Ct. 921, 929, 97 L.Ed. 1254. However, neither is dis-positive of the issue. While it has often been said that “a merchant ship is part of the territory of the country whose flag she flies,” this has been described by the Supreme Court as “a figure of speech, a metaphor” which “is chiefly applicable to ships on the high seas, where there is no terri torial sovereign; and as respects ships in foreign territorial waters it has little application beyond what is affirmatively or" }, { "docid": "18886211", "title": "", "text": "Greek flag vessel with her home port being Piraeus, Greece. 7. Lemos & Pateras, Ltd. was not, in October 1976, doing business within the State of Alabama and has no office in the United States of America. 8. With two exceptions, all of the crew members of the SS PETINGO were, at the time in question, Greek nationals. The two crew members excepted were both Indian nationals. 9. From October 11, 1975, through September 3,1976, the SS PETINGO had called at ports or facilities within this country only once. On May 22, 1976, the ship visited Belle Chase, Mississippi. 10. Plaintiff repatriated to Greece once he was discharged from the hospital and is still in Greece. CONCLUSIONS OF LAW The initial question presented by the briefs of the parties involves the enforcement of a forum clause contained in the employment contract. The clause would require that this cause proceed in the Greek courts. The Supreme Court of the United States has held, in M/S Bremen v. Zapata Off-Shore Company, 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), that the correct doctrine to be followed by the Federal Courts sitting in admiralty is that forum clauses “are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable un der the circumstances.” Inasmuch as there has been no showing of facts to the contrary and the discussion herein does not disclose any, this Court finds that the forum clause is not unreasonable. On the matter of choice of law, in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 92 L.Ed. 1254 (1953), the Supreme Court established certain criteria which govern the choice of law in maritime torts. The Court, in Hellenic Lines, Ltd. et als, v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970), added another criteria, “base of operations”, while, at the same time, found the Lauritzen test not to be a mechanical one and also that it was not intended to be exhaustive. The guidelines set forth in Lauritzen and Rhoditis reflect the policy that United" }, { "docid": "7893659", "title": "", "text": "WOODBURY, Chief Judge. A Greek seaman on a Liberian flag vessel owned by a Liberian corporation was injured on his vessel, the “World Luck,” while it was anchored in Boston Harbor in the course of a voyage from Italy to Japan. He was taken to the United States Public Health Service Hospital in Boston for treatment and apparently while he was still there his proctors libeled the vessel in rem stating three causes of action, one for unseaworthiness, another for negligence under the Jones Act and a third for maintenance and cure. The seaman gave his deposition and was repatriated to Greece where so far as is known he still resides. On motion of the owner, Menelaus Shipping Co., Ltd., as claimant, the court below dismissed all three counts of the libel on the authority of Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), and Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), plus Plamals v. Pinar Del Rio, 277 U.S. 151, 48 S.Ct. 457, 72 L.Ed. 827 (1928), as to the Jones Act count, and the libellant appealed. We think the District Court’s action was correct. The Court in Plamals v. Pinar Del Rio, supra, held that the Jones Act does not create a maritime lien but gives rise only to an action in personam against the shipowner, wherefore the Act could not be enforced in admiralty by suit in rem. And the Court in Lauritzen v. Larsen, supra, 345 U.S. at page 574, 73 S.Ct. 921, reaffirmed that holding. The Jones Act count was properly dismissed on the authority of these cases if for no other reason. The other two counts are under the general maritime law without specification of the maritime law of any particular country. Insofar as the general maritime law of the United States is concerned, we think these counts were properly dismissed for failure to state a claim upon which relief could be granted on the authority of the Lauritzen and Romero cases cited herein above, which hold that the general" } ]

[ { "docid": "10120096", "title": "", "text": "496 F.3d 947, 957 (9th Cir. 2007) (en banc). Standard principles of contract law guide our interpretation of the terms of a plea agreement. United States v. Speelman, 431 F.3d 1226, 1229 (9th Cir. 2005). We will thus enforce an appeal waiver, contained in a plea agreement if “the language of the waiver encompasses [the defendant’s] right to appeal on the grounds raised, and if the waiver was knowingly and voluntarily made.” United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004) (citing United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996)). The analogy between plea agreements and private contracts is imperfect, however, because the Constitution imposes a floor be low which a defendant’s plea, conviction, and sentencing may not fall. For example, an appeal waiver does not deprive a defendant of a constitutional ineffective assistance of counsel claim. Washington v. Lamport, 422 F.3d 864, 871 (9th Cir. 2005). A waiver of appellate rights will also not apply if a defendant’s sentence is “illegal,” which includes a sentence that “violates the Constitution.” United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (citing United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986)); accord United States v. Odachyan, 749 F.3d 798, 801 (9th Cir. 2014); United States v. Johnson, 67 F.3d 200, 203 n. 6 (9th Cir. 1995). It is an open question whether § 4B1.2(a)(2)’s residual clause remains valid in light of Johnson, although several circuits, including ours, have signaled concern about its constitutionality. See United States v. Willis, 795 F.3d 986, 996 (9th Cir. 2015); see also United States v. Maldonado, 636 Fed.Appx. 807, 809-10 & n. 1 (2d Cir.2016) (collecting cases); Ramirez v. United States, 799 F.3d 845, 856 (7th Cir. 2015); United States v. Taylor, 803 F.3d 931, 933 (8th Cir. 2015). Here, the Government asserted in its supplemental briefing that it believes Johnson applies to the Sentencing Guidelines. See Government’s Proposed Suppl. Answering Br. 11. Based on the Government’s concession, we assume without deciding that Johnson’s holding nullifies § 4B1.2(a)(2)’s identically worded residual clause. We therefore accept the Government’s concession" } ]

[ { "docid": "17263756", "title": "", "text": "waiver of Mr. Tellado’s right to collaterally attack his sentence on the basis that his plea itself, including the waiver, was not intelligent and voluntary. See id. Mr. Tellado acknowledges that in his plea agreement, he “waived his right to appeal and/or challenge his conviction or sentence in any collateral proceeding under § 2255 or 2241.” Mem. of Law in Supp. of Mot. to Vacate, Set Aside, or Correct Sentence [doc. # 1] at 10. He claims that this waiver of collateral attack rights is unenforceable because “[t]he plea transcript reflects that while the Court did advise [Mr. Tellado] of the consequences of waiving his right to appeal, it did not advise him of the consequences of waiving his right to file a collateral attack,” in violation of Rule ll(b)(l)(N) of the Federal Rules of Criminal Procedure. Id.-, see Movant’s Mem. Re: Timeliness and Waiver [doc. # 19] at 21-28. Mr. Tellado’s argument is based on the fact that during the plea colloquy, the Court noted that Mr. Tellado had waived his right to appeal but did not specifically “inquire of [Mr. Tellado] regarding [the] purported waiver [of his right to collaterally attack his sentence].” Movant’s Reply [doc. # 22] at 4. The Court regrets that it omitted to mention Mr. Tellado’s waiver of his right to collaterally attack his sentence following the prosecutor’s specific identification of that waiver during the plea colloquy. For the reasons that follow, however, the Court’s omission did not render Mr. Tellado’s waiver of collateral attack rights- unenforceable. 1. Rule ll(b)(l)(N) of the Federal Rules of Criminal Procedure requires that, before the Court accepts a guilty plea, the defendant must be placed under oath, and the Court “must inform the defendant of, and determine that the defendant understands, ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Although “Rule 11 imposes strict requirements on what information the district courts must convey and determine before they accept a plea, it does not tell them precisely how to perform this important task in the great variety of eases" }, { "docid": "20611426", "title": "", "text": "706 F.3d 493, 495-96 (D.C.Cir.2013) (holding appeal waiver unenforceable where the sentencing judge told the defendant that, regardless of the terms of the plea agreement, he could appeal “any illegal sentence” — advice that “miseharaeter-ized the meaning of the waiver in a fundamental way”). To provide assurances of the informed voluntariness of a criminal defendant’s guilty plea and any accompanying plea agreement, Federal Rule of Criminal Procedure 11 requires district courts to conduct an oral, in-person colloquy with a defendant before accepting a plea of guilty. United States v. Vonn, 535 U.S. 55, 62, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). Rule 11(b)(1) specifically provides that “the court must address the defendant personally in open court” to “inform the defendant of, and determine that the defendant understands” each of fifteen enumerated items, including “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed.R.CrimJP. ll(b)(l)(N). The court accepting Shemirani’s plea accordingly was required to discuss any appeal waiver with him in open court and determine that he understood it. During Shemirani’s plea colloquy, however, the district court did not satisfy the requirements of Rule ll(b)(l)(N). Although the court advised the defendant of other rights he was waiving in the plea agreement, it did not tell him about and ensure his understanding of the appeal waiver. For its part, the government said nothing during the plea colloquy about the appeal waiver. There is no dispute that the court failed to comply with Rule ll(b)(l)(N); the disagreement is over the effect of that deficiency in the context of this case. As noted above, the government urges us to enforce the written appeal waiver by its terms and so dismiss the appeal, whereas Shemirani contends that his waiver of his right to appeal was not knowing and voluntary, so we should address the substance of his appeal. Review of a claim of invalidity of an ostensible waiver of the right to appeal (but not the entire plea) raises difficult issues that are unsettled in this circuit, and as to which other courts take varying approaches. See," }, { "docid": "17263774", "title": "", "text": "up the important right to challenge his sentence after his conviction.” Sotirion, 617 F.3d at 35 (rejecting the appellant’s argument “that the Rule 11 colloquy was inadequate because the magistrate judge did not separately discuss the waiver of his right to collaterally attack his sentence, as opposed to his right to a direct appeal”). Therefore, the Court does not believe that its omission during the plea colloquy constituted an error under Rule 11, let alone an error that is “clear or obvious.” Marcus, 130 S.Ct. at 2164 (quotation marks and citation omitted), b. Even if the Court’s failure to utter the magic words “collateral attack” constituted a technical error, however, the Court cannot conclude that its omission rendered Mr. Tellado’s waiver of collateral attack rights unknowing or involuntary. “[A] defendant’s promise in a plea agreement to forgo the right to appeal [or collaterally attack] a sentence” is enforceable only if “the record clearly demonstrates that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary.” United States v. Monzon, 359 F.3d 110, 116 (2d Cir.2004) (quotation marks and citation omitted). In this case, nothing in the record suggests that Mr. Tellado’s waiver of his right to collaterally attack his sentence was involuntary or that Mr. Tellado did not understand the potential consequences of the waiver. In the written plea agreement itself, Mr. Tellado “expressly acknowledge^]” that he was “waiving his ... rights of collateral attack knowingly and voluntarily.” Plea Agreement at 4. As already noted, the prosecutor specifically identified and summarized that provision during Mr. Tellado’s plea colloquy. Before the prosecutor’s summary of the terms of the agreement, the Court instructed that Mr. Tellado should “listen carefully to what [the prosecutor] says, because when he’s finished, I’m going to ask you if you think he has accurately summarized what you understand to be the terms of your written Plea Agreement with the government.” Id. at 19:19-23. After the prosecutor concluded his summary, the Court asked Mr. Tellado whether he had in fact heard the prosecutor’s description of the plea" }, { "docid": "17263755", "title": "", "text": "indictment and the corresponding statutory penalties for that count, the plea agreement recites a Guidelines calculation that arrives at an imprisonment range of 188-235 months. The plea agreement states that “[i]t is specifically agreed that the defendant will not appeal or collaterally attack in any proceeding, including a motion under 28 U.S.C. § 2255 and/or § 2241, the conviction or sentence of imprisonment imposed by the Court if that sentence does not exceed 188 months even if the Court reaches a sentencing range permitting such a sentence by a Guidelines analysis different from that specified above or otherwise contemplated by the parties.” Id. at 4. The plea agreement then states, “The defendant expressly acknowledges that he is waiving his appellate rights and rights of collateral attack knowingly and intelligently.” Id. at 4. This waiver of Mr. Tellado’s right to appeal or collaterally attack his sentence “is in a familiar form that [the Second Circuit] ha[s] consistently held enforceable.” United States v. Roque, 421 F.3d 118, 121 (2d Cir.2005). However, it does not serve as a waiver of Mr. Tellado’s right to collaterally attack his sentence on the basis that his plea itself, including the waiver, was not intelligent and voluntary. See id. Mr. Tellado acknowledges that in his plea agreement, he “waived his right to appeal and/or challenge his conviction or sentence in any collateral proceeding under § 2255 or 2241.” Mem. of Law in Supp. of Mot. to Vacate, Set Aside, or Correct Sentence [doc. # 1] at 10. He claims that this waiver of collateral attack rights is unenforceable because “[t]he plea transcript reflects that while the Court did advise [Mr. Tellado] of the consequences of waiving his right to appeal, it did not advise him of the consequences of waiving his right to file a collateral attack,” in violation of Rule ll(b)(l)(N) of the Federal Rules of Criminal Procedure. Id.-, see Movant’s Mem. Re: Timeliness and Waiver [doc. # 19] at 21-28. Mr. Tellado’s argument is based on the fact that during the plea colloquy, the Court noted that Mr. Tellado had waived his right to appeal" }, { "docid": "19793251", "title": "", "text": "Polak, a veteran, victimized other veterans who were down on their luck; and (3) Polak needed to receive alcohol treatment in a custodial environment. II. ANALYSIS A. The Totality of the Circumstances Shows that Polak’s Guilty Plea Was Knowing and Voluntary Polak argues that the district court violated Rule 11 of the Federal Rules of Criminal Procedure when it failed to ascertain Polak’s understanding of the appellate waiver before accepting his plea, and that, as a result, we must remand for resentencing. He also argues that the district court erred when it failed to specifically mention, during the plea colloquy, that the appellate waiver applied to the court’s sentencing decision as well as to the plea itself. Rule 11, a “guilty-plea safeguard,” details the procedures that a district court must follow when a defendant wishes to plead guilty. United States v. Sura, 511 F.3d 654, 657 (7th Cir.2007). It exists “to assist the district judge in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary ... [and] to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination.” Id. at 657 (quoting McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)). So, “the more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous ... attacks on the constitutional validity of guilty pleas.” Sura, 511 F.3d at 657-58 (quoting McCarthy, 394 U.S. at 465, 89 S.Ct. 1166). Rule ll(b)(l)(N) specifically requires a sentencing court to review “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence” with the defendant before accepting his guilty plea. Sura, 511 F.3d at 665 (7th Cir.2007) (citing Fed.R.Crim.P. ll(b)(l)(N)). So, here, the district court committed error when it failed to discuss the appellate waiver provision before accepting Polak’s plea. Because Polak failed to object before the end of the colloquy, our examination here is whether this error was plain. Id. at 658. In" }, { "docid": "22129759", "title": "", "text": "within the explicit exception for challenges to upward departures.” Id. at 1207 (citing Joyce, 357 F.3d at 922-24). See also United States v. Andis, 333 F.3d 886, 892 n. 7 (8th Cir.2003) (noting that waiver of “all rights to appeal whatever sentence is imposed” included that “portion of sentence which involved the imposition of a term of supervised release and its conditions”); United States v. Sines, 303 F.3d 793, 798-99 n. 3 (7th Cir.2002) (finding that waiver of right to appeal any portion of his sentence that was within the guideline range constituted a waiver of Sines’s right to appeal the “terms of his supervised release”). Accordingly, we hold that Goodson’s waiver of his right to appeal his sentence under § 3742 encompassed his right to appeal the conditions of his supervised release. B. Inasmuch as Goodson’s challenge to the condition of supervised release is within the scope of his appellate waiver, we must consider his argument that his waiver was unknowing and involuntary because the District Court did not conduct an adequate colloquy under Federal Rule of Criminal Procedure ll(b)(l)(N). Rule ll(b)(l)(N), as we noted above, mandates that “[bjefore the court accepts a plea of guilty ... the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following: ... (N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” 1. In United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), the Supreme Court held that a defendant, who has not objected in the trial court to a Rule 11 error, “has the burden to satisfy the plain-error rule and that a reviewing court may consult the whole record when considering the effect of any error on substantial rights.” Id. at 59, 122 S.Ct. 1043. Plain error requires that there must be (1) error, (2) that is plain or obvious, and (3) that affects a defendant’s substantial rights. Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137" }, { "docid": "18250198", "title": "", "text": "trial court never specifically addressed him during the plea proceedings to ascertain if he understood that provision. He also argues that the waiver provision is an invalid contract of adhesion. Finally, he argues that since he was sentenced prior to the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Sentencing Guidelines were viewed as mandatory by the sentencing court, and his case should therefore be remanded for resentencing pursuant to Booker. The waiver provision contained in paragraph 5 of defendant’s plea agreement reads as follows: Defendant’s waiver of appeal rights. If the court imposes a sentence equal to or less than the maximum sentence described in ¶ 2 of this agreement [87 months], defendant waives any right he may have to appeal his conviction or sentence, including any right under 18 U.S.C. § 3742 to appeal on the grounds that the sentence was imposed as a result of an incorrect application of the sentencing guidelines. The parties agree, however, pursuant to Rule 11(a)(2), that defendant Robinson may appeal the court’s ruling on two specific issues: (1) Whether Defendant Robinson received adequate notice pursuant to the Interstate Agreement on Detainers and (2) whether the Sixth Amendment’s Speedy Trial Clause was violated. Defendant first argues that the district court did not comply with the provisions of Fed.R.Crim.P. ll(b)(l)(N), which provides that before accepting a plea of guilty, the court must inform the defendant of, and determine that the defendant understands, “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Rule ll(b)(l)(N). The district court in this case did not specifically address the defendant concerning the appellate waiver provision in his plea agreement. The defendant did not object to this error before the district court. “This Court reviews the question of whether a defendant waived his right to appeal his sentence in. a valid plea agreement de novo.\" United States v. Smith, 344 F.3d 479, 483 (6th Cir.2003). Alleged violations of Rule 11 are reviewed for plain error if the defendant did not object" }, { "docid": "17263773", "title": "", "text": "188 months.” Id. at 24:6-11. Mr. Tellado responded, “Yes.” Id. at 12. The Court then asked Mr. Tellado’s counsel, “[A]re you satisfied that [the] waiver of appeal right is knowing and voluntary on your client’s part?” Id. at 24:14-16. Mr. Tellado’s counsel replied, “Yes, I am.” Id. at 24:17. Rule ll(b)(l)(N) requires only that “the court must address the defendant personally in open court,” and “[d]uring th[at] address, inform the defendant of, and determine that the defendant understands ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Nothing in Rule ll(b)(l)(N) suggests that in order to determine that the defendant understands a waiver of his right to collaterally attack his sentence, the Court itself must first summarize the waiver rather than delegate that task to the prosecutor. While the Court’s advisement during the plea colloquy was “not as thorough or precise as it could have been” — and the Court regrets its omission — it was sufficient to confirm Mr. Tellado’s “understanding that he was giving up the important right to challenge his sentence after his conviction.” Sotirion, 617 F.3d at 35 (rejecting the appellant’s argument “that the Rule 11 colloquy was inadequate because the magistrate judge did not separately discuss the waiver of his right to collaterally attack his sentence, as opposed to his right to a direct appeal”). Therefore, the Court does not believe that its omission during the plea colloquy constituted an error under Rule 11, let alone an error that is “clear or obvious.” Marcus, 130 S.Ct. at 2164 (quotation marks and citation omitted), b. Even if the Court’s failure to utter the magic words “collateral attack” constituted a technical error, however, the Court cannot conclude that its omission rendered Mr. Tellado’s waiver of collateral attack rights unknowing or involuntary. “[A] defendant’s promise in a plea agreement to forgo the right to appeal [or collaterally attack] a sentence” is enforceable only if “the record clearly demonstrates that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and" }, { "docid": "17263771", "title": "", "text": "or formal violation of Rule ll(b)(l)(N). The Court will then decide whether the record demonstrates that Mr. Tellado knowingly and voluntarily waived his right to collaterally attack his sentence. For the sake of thoroughness, and because of the unsettled state of the case law, the Court also will evaluate whether Mr. Tellado has shown that the Court’s alleged Rule 11 error affected Mr. Tellado’s “substantial rights” and whether Mr. Tellado has demonstrated an error that “seriously affeet[s] the fairness, integrity, or public reputation of judicial proceedings.” Torrellas, 455 F.3d at 103 (quotation marks and citations omitted). a. The Court first considers whether its failure to say the words “collateral attack” during Mr. Tellado’s plea colloquy was plain error under Rule ll(b)(l)(N). During Mr. Tellado’s plea colloquy, the Court asked the prosecutor to summarize the terms of the plea agreement, and the prosecutor explicitly stated that the agreement included “a waiver of a right to appeal or rights of collateral attack.” Plea Tr. at 23:14-15. The prosecutor then reiterated that “[t]he defendant has agreed to waive his rights of appeal or to collaterally attack the conviction or sentence imposed by the Court, as long as the sentence does not exceed 188 months.” Id. at 23:16-19. Although the Court itself did not mention specifically Mr. Tellado’s waiver of his right to collaterally attack his sentence, immediately after the prosecutor explained the waiver of rights of appeal and collateral attack, the Court stated that it wanted to “focus [Mr. Tellado] in on this waiver.” Id. at 23:21-22. The Court noted that with the waiver, Mr. Tellado was giving up his right to appeal his sentence “so long as [his] sentence [did] not exceed 188 months,” even if he thought that the way the Court reached that sentence was wrong. Id. at 23:25-24:4. The Court stated that Mr. Tellado was giving up a “valuable right.” Id. at 24:5. The Court then asked Mr. Tellado whether he had discussed the waiver with counsel and wheth er Mr. Tellado “was willing to give up [his] right to appeal, so long as [his sentence] did not exceed" }, { "docid": "17263772", "title": "", "text": "his rights of appeal or to collaterally attack the conviction or sentence imposed by the Court, as long as the sentence does not exceed 188 months.” Id. at 23:16-19. Although the Court itself did not mention specifically Mr. Tellado’s waiver of his right to collaterally attack his sentence, immediately after the prosecutor explained the waiver of rights of appeal and collateral attack, the Court stated that it wanted to “focus [Mr. Tellado] in on this waiver.” Id. at 23:21-22. The Court noted that with the waiver, Mr. Tellado was giving up his right to appeal his sentence “so long as [his] sentence [did] not exceed 188 months,” even if he thought that the way the Court reached that sentence was wrong. Id. at 23:25-24:4. The Court stated that Mr. Tellado was giving up a “valuable right.” Id. at 24:5. The Court then asked Mr. Tellado whether he had discussed the waiver with counsel and wheth er Mr. Tellado “was willing to give up [his] right to appeal, so long as [his sentence] did not exceed 188 months.” Id. at 24:6-11. Mr. Tellado responded, “Yes.” Id. at 12. The Court then asked Mr. Tellado’s counsel, “[A]re you satisfied that [the] waiver of appeal right is knowing and voluntary on your client’s part?” Id. at 24:14-16. Mr. Tellado’s counsel replied, “Yes, I am.” Id. at 24:17. Rule ll(b)(l)(N) requires only that “the court must address the defendant personally in open court,” and “[d]uring th[at] address, inform the defendant of, and determine that the defendant understands ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Nothing in Rule ll(b)(l)(N) suggests that in order to determine that the defendant understands a waiver of his right to collaterally attack his sentence, the Court itself must first summarize the waiver rather than delegate that task to the prosecutor. While the Court’s advisement during the plea colloquy was “not as thorough or precise as it could have been” — and the Court regrets its omission — it was sufficient to confirm Mr. Tellado’s “understanding that he was giving" }, { "docid": "17263757", "title": "", "text": "but did not specifically “inquire of [Mr. Tellado] regarding [the] purported waiver [of his right to collaterally attack his sentence].” Movant’s Reply [doc. # 22] at 4. The Court regrets that it omitted to mention Mr. Tellado’s waiver of his right to collaterally attack his sentence following the prosecutor’s specific identification of that waiver during the plea colloquy. For the reasons that follow, however, the Court’s omission did not render Mr. Tellado’s waiver of collateral attack rights- unenforceable. 1. Rule ll(b)(l)(N) of the Federal Rules of Criminal Procedure requires that, before the Court accepts a guilty plea, the defendant must be placed under oath, and the Court “must inform the defendant of, and determine that the defendant understands, ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Although “Rule 11 imposes strict requirements on what information the district courts must convey and determine before they accept a plea, it does not tell them precisely how to perform this important task in the great variety of eases that come before them.” United States v. Torrellas, 455 F.3d 96, 102 (2d Cir.2006) (emphasis in original) (quotation marks, alterations, and citation omitted). The Government argues that the violation of Rule 11 alleged by Mr. Tellado is subject to plain error review. When a defendant does not preserve his claim of Rule 11 error in the trial court prior to entry of judgment, the alleged violation is subject only to plain error review on direct appeal. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); Torrellas, 455 F.3d at 103. Under the plain error standard, an appellate court may ... correct an error not raised at trial only where the appellant demonstrates that (1) there is an ‘error’; (2) the error is ‘clear or obvious, rather than subject to reasonable dispute’; (3) the error ‘affected the appellant’s substantial rights, which in the ordinary case means’ it ‘affected the outcome of the district court proceedings’; and (4) ‘the error seriously affect[s] the fairness, integrity or public reputation of judicial" }, { "docid": "17263783", "title": "", "text": "Tellado ask to withdraw his plea. In sum, Mr. Tellado cannot show a “reasonable probability” that, but for the Court’s failure to repeat the prosecutor’s statement during the plea colloquy that Mr. Tellado had agreed to waive rights of collateral attack, Mr. Tellado would not have entered his guilty plea. Dominguez Benitez, 542 U.S. at 83, 124 S.Ct. 2333. Indeed, Mr. Tellado has not even attempted to argue that, but for the Court’s alleged Rule 11 error, he would not have entered a guilty plea. Nor, for that matter, has he asserted that the Court’s alleged error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Marcus, 130 S.Ct. at 2164 (quotation marks, alteration, and citation omitted); see Vonn, 535 U.S. at 63, 122 S.Ct. 1043; Torrellas, 455 F.3d at 103. Thus, the Court’s omission during the plea colloquy — even if it constituted a technical Rule 11 error — did not render Mr. Tellado’s waiver of collateral attack rights unenforceable. 2. To the extent that Mr. Tellado argues that his waiver of collateral attack rights should be deemed unknowing and unenforceable regardless of the Court’s alleged Rule 11 violation because the waiver was based on the “false premise” that his prior convictions supported a career offender designation, Movant’s Mem. Re: Timeliness and Waiver [doc. #29] at 28, his argument is without merit. A defendant’s inability to anticipate changes to the sentencing law does not render a waiver of appeal or collateral attack rights unknowing. See United States v. Morgan, 406 F.3d 135, 137 (2d Cir.2005) (“[A defendant’s] inability to foresee that subsequently decided cases would create new appeal issues does not supply a basis for failing to enforce an appeal waiver. On the contrary, the possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements.”); Garcia-Santos, 273 F.3d at 509 (“We have long enforced waivers of direct appeal rights in plea agreements, even though the grounds for appeal arose after the plea agreement was entered into. The reasons for enforcing waivers of direct appeal" }, { "docid": "17263784", "title": "", "text": "collateral attack rights should be deemed unknowing and unenforceable regardless of the Court’s alleged Rule 11 violation because the waiver was based on the “false premise” that his prior convictions supported a career offender designation, Movant’s Mem. Re: Timeliness and Waiver [doc. #29] at 28, his argument is without merit. A defendant’s inability to anticipate changes to the sentencing law does not render a waiver of appeal or collateral attack rights unknowing. See United States v. Morgan, 406 F.3d 135, 137 (2d Cir.2005) (“[A defendant’s] inability to foresee that subsequently decided cases would create new appeal issues does not supply a basis for failing to enforce an appeal waiver. On the contrary, the possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements.”); Garcia-Santos, 273 F.3d at 509 (“We have long enforced waivers of direct appeal rights in plea agreements, even though the grounds for appeal arose after the plea agreement was entered into. The reasons for enforcing waivers of direct appeal in such cases lead us to the same conclusion as to waivers of collateral attack under § 2255.” (citation omitted)). B. For the reasons already discussed, Mr. Tellado has not stated a credible claim that he is “actually innocent.” Therefore, his waiver of his right to collaterally attack his sentence cannot be deemed unenforceable on that basis. Insofar as Mr. Tellado’s argument that his waiver should not be enforced because he is “actually innocent” of being a career offender is really an argument that the Court should nullify the waiver on the basis of a subsequent development in the law, the Second Circuit has rejected that possibility. As the Court has just noted, where legal conditions change subsequent to a plea agreement, “the possibility that the parties might have bargained differently ... is simply not relevant to whether [a] plea agreement is enforceable.” Roque, 421 F.3d at 123; see, e.g., United States v. Lee, 523 F.3d 104, 107 (2d Cir.2008) (holding that “neither [Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d" }, { "docid": "22129762", "title": "", "text": "no reason why we should treat Rule ll(b)(l)(N) any differently.” Id. at 870. The Court instructed that “it is always error for a district court to fail to discuss an appellate waiver provision during a Rule 11 colloquy, although not always reversible error.” Id. at 871. Such error, the Court concluded, was also plain and obvious as the congressional mandate in the Rule was clear. Id. at 871-72. After considering the plea agreement and colloquy, the Court concluded that Edgar had failed to meet his burden of establishing that he did not understand the waiver and that the deficient colloquy had affected his substantial rights. Id. at 872-73. As a result, the Court concluded the waiver was enforceable and dismissed the appeal. The Sixth, Seventh, and Ninth Circuit Courts of Appeals also have applied plain error review to a defendant’s claim that his appellate waiver should be unenforceable because of an inadequate colloquy. See United States v. Arellano-Gallegos, 387 F.3d 794, 796 (9th Cir.2003); United States v. Murdock, 398 F.3d 491, 496 (6th Cir.2005); United States v. Sura, 511 F.3d 654, 658 (7th Cir.2008). We agree with our sister courts of appeals that Vonn’s plain error standard of review should be applied when assessing whether there was a violation of Rule ll(b)(l)(N), which warrants setting an appellate waiver aside. 2. Consistent with Vonn’s plain error standard, we consult the “whole record” in determining whether there is a basis for holding Goodson’s appellate waiver unenforceable. In light of the circumstances surrounding Goodson’s agreement to enter a plea, the plain language of the plea agreement and the District Court’s colloquy, we conclude that there was error and that the error was obvious in light of the plain dictates of Rule ll(b)(l)(N). The rule clearly provides that the District Court “must address the defendant personally” and “must inform the defendant of, and determine that the defendant understands ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed.R.CrimP. ll(b)(l)(N). Here, the District Court relied upon the prosecutor’s recitation of the terms of the appellate waiver" }, { "docid": "22690393", "title": "", "text": "the grounds that the district court abused its discretion. However, we dismissed a similar argument in United States v. Schuman, 127 F.3d 815, 817 (9th Cir.1997), where the appellant asserted that a plea agreement providing that he “waive[d] ... any right to appeal or collaterally attack the conviction and sentence” did not preclude him from challenging the district court’s application of the federal Sentencing Guidelines because the agreement failed to “specifically address his statutory right to appeal” on that basis. There we stated: “We reject [the appellant’s] contention that the language of the plea agreement does not specifically contemplate the statutory right to appeal incorrect applications of the Sentencing Guidelines for it would render the waiver meaningless.” Id. Accordingly, while Jeronimo’s plea agreement does not specifically contemplate the possibility of an appeal based on the district court’s denial of a motion to withdraw, its broad language clearly bars him from bringing this appeal. B Having concluded that Jeronimo’s waiver included the appeal he now advances, we next consider whether his waiver was knowing and voluntary. We follow the rule that a waiver of the right to appeal is knowing and voluntary where the plea agreement as a whole was knowingly and voluntarily made. As we stated in Portillo-Cano: [WJaivers of appeal must stand or fall with the agreement of which they are a part. If the agreement is voluntary, and taken in compliance with Rule 11, then the waiver of appeal must be honored. If the agreement is involuntary or otherwise unenforceable, then the defendant is entitled to appeal. 192 F.3d at 1250 (internal quotation marks and citation omitted). At least on its face, the district court’s extensive Rule 11 colloquy with Jeronimo shows that Jeronimo’s plea was knowingly and voluntarily made. The district court properly advised Jeronimo of the nature of the drug charges against him, the consequences of conviction, and the constitutional rights he was waiving by pleading guilty. The district court also summarized each of the terms of Jeronimo’s plea agreement, including the appeal waiver provision, and informed Jeronimo that his maximum possible penalty under the agreement" }, { "docid": "20611425", "title": "", "text": "plea. The written plea agreement that Shemirani signed with the advice of counsel stated that he “knowingly and willingly” waived his right to appeal his sentence (with limited exceptions that nobody contends apply here). Public App. 54. Shemirani claims that his appeal waiver was not “knowing, intelligent, and voluntary” and thus cannot be enforced, see United States v. Guillen, 561 F.3d 527, 529 (D.C.Cir.2009), but he does not seek to withdraw from any other aspect of the plea agreement. This court has acknowledged that a criminal defendant may by his plea agreement waive the right to appeal a sentence that is “within the statutory range and imposed under fair procedures.” Guillen, 561 F.3d at 530. Even though such a waiver is anticipatory, as it necessarily regards a sentence that has yet to be imposed, it “is nonetheless a knowing waiver if the defendant is aware of and understands the risks involved in his decision.” Id. at 529; see In re Sealed Case, 702 F.3d 59, 63 (D.C.Cir.2012) (reciting standard); see also United States v. Godoy, 706 F.3d 493, 495-96 (D.C.Cir.2013) (holding appeal waiver unenforceable where the sentencing judge told the defendant that, regardless of the terms of the plea agreement, he could appeal “any illegal sentence” — advice that “miseharaeter-ized the meaning of the waiver in a fundamental way”). To provide assurances of the informed voluntariness of a criminal defendant’s guilty plea and any accompanying plea agreement, Federal Rule of Criminal Procedure 11 requires district courts to conduct an oral, in-person colloquy with a defendant before accepting a plea of guilty. United States v. Vonn, 535 U.S. 55, 62, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). Rule 11(b)(1) specifically provides that “the court must address the defendant personally in open court” to “inform the defendant of, and determine that the defendant understands” each of fifteen enumerated items, including “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed.R.CrimJP. ll(b)(l)(N). The court accepting Shemirani’s plea accordingly was required to discuss any appeal waiver with him in open court and determine that he understood" }, { "docid": "22650203", "title": "", "text": "such procedures sufficient to find a knowing and voluntary waiver.” Baramdyka, 95 F.3d at 844; see also United States v. Johnson, 67 F.3d 200, 203 (9th Cir.1995) (“The fact that[defendant] did not foresee the specific issue that he now seeks to appeal does not place that issue outside the scope of his waiver.”). 2. Exceptions to the Appeal Waiver Watson’s right to appeal the condition of his supervised release is not preserved by any exception to appellate waiver. “An appeal waiver will not apply if: 1) a defendant’s guilty plea failed to comply with Fed.R.Crim.P. 11; 2) the sentencing judge informs a defendant that she retains the right to appeal; 3) the sentence does not comport with the terms of the plea agreement; or 4) the sentence violates the law.” Bibler, 495 F.3d at 624. We concluded above that the sentence was not unlawful. The inapplicability of each of the other exceptions is addressed in turn. i. Adequacy of the Plea Colloquy Federal Rule of Criminal Procedure ll(b)(l)(N) mandates that “[bjefore the court accepts a plea of guilty ... the court must address the defendant personally in open court.... [and] must inform the defendant of, and determine that the defendant understands ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Since Watson did not object to the adequacy of the plea colloquy before the district court, we review for plain error. United States v. Ross, 511 F.3d 1233, 1235 (9th Cir.2008); see United States v. Arellano-Gallegos, 387 F.3d 794, 796 (9th Cir.2004). We have held that a district court did not plainly err in allowing the prosecutor to merely summarize the plea agreement in open court and then affirming that the summary comported with the defendant’s understanding of the agreement. United States v. Ma, 290 F.3d 1002, 1005 (9th Cir.2002). Ma relied in part on the defendant’s prior acknowledgment that she read and understood the plea agreement. Id. Given the diligent colloquy undertaken here and Watson’s written assurances that he adequately reviewed the terms of the plea agreement, we see no" }, { "docid": "22129763", "title": "", "text": "States v. Sura, 511 F.3d 654, 658 (7th Cir.2008). We agree with our sister courts of appeals that Vonn’s plain error standard of review should be applied when assessing whether there was a violation of Rule ll(b)(l)(N), which warrants setting an appellate waiver aside. 2. Consistent with Vonn’s plain error standard, we consult the “whole record” in determining whether there is a basis for holding Goodson’s appellate waiver unenforceable. In light of the circumstances surrounding Goodson’s agreement to enter a plea, the plain language of the plea agreement and the District Court’s colloquy, we conclude that there was error and that the error was obvious in light of the plain dictates of Rule ll(b)(l)(N). The rule clearly provides that the District Court “must address the defendant personally” and “must inform the defendant of, and determine that the defendant understands ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed.R.CrimP. ll(b)(l)(N). Here, the District Court relied upon the prosecutor’s recitation of the terms of the appellate waiver to fulfill its obligation to inform the defendant of the specifics of the waiver provision. This was error. Although the Court did ask Goodson personally whether he understood that he had given up substantial appellate rights, we cannot ignore that there was no effort to verify that Goodson understood the breadth of the waiver or to underscore the fact that the waiver meant that, subject to three very narrow exceptions, Goodson was giving up the right to appeal both the validity of his plea and the legality of his sentence. This too was error. See Edgar, 348 F.3d at 871; Arellano-Gallegos, 387 F.3d at 796-97; Murdock, 398 F.3d at 497; and Sura, 511 F.3d at 661. Our inquiry is not limited, however, to whether there was a technical violation of Rule 11. Rather, we must determine whether Goodson, who bears the burden of persuasion, Olano, 507 U.S. at 734, 113 S.Ct. 1770, has demonstrated that the deficient colloquy affected his substantial rights by precluding him from knowing of and understanding the significance of the binding" }, { "docid": "17084129", "title": "", "text": "waiver in a post-plea sentencing agreement despite the lack of a colloquy about the waiver). Finally, the government maintains that enforcing the waiver would not result in a miscarriage of justice. Boneshirt contends that he may maintain his appeal despite the waiver because the district court failed to engage in the colloquy required by Federal Rule of Criminal Procedure ll(b)(l)(N). Under this court’s precedent, Boneshirt maintains, the waiver of appellate rights cannot be enforced when the district court does not discuss the waiver with the defendant prior to accepting his plea. See United States v. Laney, 261 Fed.Appx. 913, 913 (8th Cir.2008) (unpublished per curiam); United States v. Fugate, 158 Fed.Appx. 748, 749 (8th Cir.2005) (unpublished per curiam); United States v. Rojas-Coria, 401 F.3d 871, 872 n. 2 (8th Cir.2005). “Whether a valid waiver of appellate rights occurred is a question of law that we will review de novo.” United States v. Sisco, 576 F.3d 791, 795 (8th Cir.2009). “The government bears the burden of proving that the defendant’s appeal is barred by the waiver.” United States v. Mink, 476 F.3d 558, 562 (8th Cir.2007). Federal Rule of Criminal Procedure ll(b)(l)(N) requires that, “[bjefore the court accepts a plea of guilty or nolo contendere ... the court must inform the defendant of, and determine that the defendant understands, ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” We have frequently declined to enforce an appeal waiver when the record does not establish that the district court engaged in the colloquy required by Rule 11(b)(1)(N). E.g., United States v. Slaughter, 407 Fed.Appx. 83, 83 (8th Cir.2011) (unpublished per curiam) (declining to enforce an appeal waiver “given the minimal discussion of the plea agreement and waiver at the plea hearing”); Fugate, 158 Fed. Appx. at 749 (declining to enforce an appeal waiver because the court did not engage in the required colloquy); Rojas-Coria, 401 F.3d at 872 n. 2 (finding that the appeal was not barred by an appeal waiver where the court did not engage in the colloquy); see also Laney, 261" }, { "docid": "21877038", "title": "", "text": "a petitioner does not satisfy the Rule 15 “relation back” standard merely by raising some type of ineffective assistance in the original petition, and then amending the petition to assert another ineffective assistance claim based upon an entirely distinct type of attorney misfeasance. See, e.g., Davenport v. United States, 217 F.3d 1341, 1346 (11th Cir.2000); Duffus, 174 F.3d at 337. Accordingly, the district court did not abuse its discretion in dismissing the above-mentioned claims from the amended petition, and the only habeas claim properly before us on appeal is the claim that the district court failed to comply with Rule 11(c) during the plea hearing. B. Waiver of Right of Appeal and Collateral Challenge Ciampi argues that the district court violated Rule 11(c), in that it failed to specifically inquire during the plea colloquy whether he understood that he was waiving his right to appeal or to collaterally challenge the gambling conviction. Ciampi relies upon United States v. Teeter, 257 F.3d 14, 24 (1st Cir.2001), where we asserted that such a waiver-of-appeal provision normally would not be enforceable unless (i) “the written plea agreement signed by the defendant contains a clear statement elucidating the waiver and delineating its scope;” (ii) “the court’s interrogation [during the plea hearing] suffices to ensure that the defendant freely and intelligently agreed to waive her right to appeal her forthcoming sentence,” and (iii) the waiver otherwise constitutes a “miscarriage of justice.” Id. at 24-25; see Fed. R.Crim.P. ll(b)(l)(N) (noting that court must “address the defendant personally in open court ... [and] inform the defendant of, and determine that the defendant understands ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence”). The Ciampi contention fails. First, it is undisputed that paragraph 6 of the Ciampi plea agreement contains a plain expression of the nature of the waiver, and that paragraph 4 likewise clearly states its scope: “This disposition encompasses both the counts of the Indictment and the Information to which Defendant is pleading guilty, and the count of the Indictment on ivhich the jury found Defendant guilty.”" } ]

[ { "docid": "4810819", "title": "", "text": "to bring the RICO claims, and dismisses those claims as to the four moving defendants. The Trustee’s RICO claims fail for another, independent reason, namely that, after the Court excludes allegations in the SAC that it cannot consider under the so-called ‘RICO amendment’ set forth in the Private Securities Litigation Reform Act (“PSLRA”), the SAC fails to state any RICO claim. Under the RICO amendment, “no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962.” 18 U.S.C. § 1964(c). The Second Circuit has recently held that this language bars civil RICO claims, including claims for wire and mail fraud, “alleging predicate acts of securities fraud, even where a plaintiff cannot itself pursue a securities fraud action against the defendant.” MLSMK Inv. Co. v. JP Morgan Chase & Co., 651 F.3d 268, 277 (2d Cir.2011); see also H.R. Rep. 104-369, at 41 (1995), reprinted in 1995 U.S.C.C.A.N. 730, 746 (noting that RICO amendment would bar plaintiffs from “plead[ing] other specified offenses, such as mail or wire fraud, as predicate acts under civil RICO if such offenses are based on conduct that would have been actionable as securities fraud”). The Second Circuit also quoted with approval the Third Circuit’s holding that the RICO amendment bars RICO claims based on conduct that perpetuates a Ponzi scheme. MLSMK 651 F.3d at 277 n. 11 (“[C]onduct undertaken to keep a securities fraud Ponzi scheme alive is conduct undertaken in connection with the purchase and sale of securities.” (quoting Bald Eagle Area Sch. Dist. v. Keystone Fin., Inc., 189 F.3d 321, 330 (3d Cir.1999))). In connection with the “Money In” component of the purported enterprise, the SAC alleges not only that UniCredit, Pioneer, Bank Austria, and Profumo kept Madoff Securities’ Ponzi scheme alive, but also that they did so by “conspir[ing] to conceal” the fact that their funds’ only fed into Madoff Securities, engaging in “deception” in order to attract investors — who could have invested with Madoff Securities directly — to Primeo, HAM, and other feeder funds." } ]

[ { "docid": "17286431", "title": "", "text": "SACK, Circuit Judge: This case arises out of the massive and now infamous Ponzi scheme perpetrated by Bernard L. Madoff, which culminated abruptly with his arrest in December 2008 but whose aftershocks continue. Between October and December 2008, the plaintiff, MLSMK Investment Company (“MLSMK”), invested $12.8 million with Madoffs investment company, Bernard L. Madoff Investment Securities (“BMIS”). The defendants, JP Morgan Chase & Co. (“JPMC”) and JP Morgan Chase Bank, N.A. (“Chase Bank”), were, respectively, a trading partner for Madoffs apparently legitimate market-making business and the bank with which Madoff maintained the account for BMIS. MLSMK lost its $12.8 million investment when, on December 11, 2008, Madoff was arrested and his assets seized. MLSMK subsequently filed this lawsuit in the United States District Court for the Southern District of New York alleging several New York state-law claims against the defendants. It also asserted a federal claim contending that the defendants had conspired with Madoff to “fleece” his victims, in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(d) and 1964(c). In that connection, MLSMK alleges that by late summer 2008, the defendants became suspicious of Madoffs business activities and therefore undertook a “due diligence” investigation into Madoffs activities, and that the investigation revealed to the defendants that Madoffs investment business was a thoroughly fraudulent enterprise. Nevertheless, MLSMK asserts, the defendants — eager to continue receiving the substantial fees they derived from Madoffs market-making and banking activity — continued to trade with and provide banking services to him. MLSMK asserts that by failing to freeze Madoffs accounts, the defendants became liable for conspiracy to violate RICO by aiding and abetting Madoffs breach of fiduciary duty, commercial bad faith, and negligence. The district court (Barbara S. Jones, Judge) dismissed the plaintiffs complaint in its entirety, concluding that the complaint did not adequately plead any of the claims purportedly contained therein. We have affirmed that court’s dismissal of the plaintiffs state-law claims for aiding and abetting breach of fiduciary duty, commercial bad faith, and negligence. See MLSMK Inv. Co. v. JP Morgan Chase & Co. (“MLSMK I”), No." }, { "docid": "9740563", "title": "", "text": "the congressional intent behind the RICO Amendment.” Under Zandford, all that is required for a section 10(b) violation is that the scheme to defraud and the sale of securities coincide. In the Zandford opinion, the Supreme Court circumscribed the breadth of its holding by providing examples of cases in which the fraud and the sale of securities would not coincide: where “after a lawful transaction had been consummated, a broker decided to steal the proceeds [or] a case in which a thief simply invested the proceeds of a routine conversion in the stock market,” The Court described those examples as cases in which the sale of securities and the fraud were “independent events.” The obvious implication is that where the fraud and the sale of securities are “less tangentially related,” or more closely dependent on each other, the ‘in connection with’ requirement is satisfied. There is no question here that defendants’ alleged scheme, which dates back to 1996, coincided temporally with the sale of Mr. Seippel’s stock. The Seippels have alleged that defendants were engaged in a fraudulent scheme before, during and after the stock transaction. The stock transaction was integrally related to the fraudulent scheme. Defendants contacted the Seippels, as part of their scheme, precisely because of his sale of stock, and took advantage of their knowledge of Mr. Seip-pel’s planned securities transaction to induce him to take part in the COBRA transaction. As in Zandford, “ftjhe securities sales and [defendants’] fraudulent practices were not independent events.” Because these allegations are actionable as a securities fraud, the Seippels cannot rely on them as the basis for a RICO claim. The Seippels’ RICO claims are therefore dismissed. C. The State Law Claims Against the Sidley Defendants 1. Malpractice The Seippels assert malpractice claims (styled as “negligent misrepresentation/professional malpractice” and “breach of contraci/professional malpractice”) against the Sidley Defendants. The Sidley Defendants argue that these claims are time-barred. “Where jurisdiction rests upon diversity of citizenship, a federal court sitting in New York must apply New York choice-of-law rules and statutes of limitations.” Under New York’s borrowing statute, where a plaintiff who is" }, { "docid": "17286469", "title": "", "text": "would nonetheless decline to address it because we conclude that the effect of the RICO Amendment does not turn on whether MLSMK would be able to state a valid claim against JPMC and Chase Bank under section 10(b). To the extent that MLSMK argues that the defendants’ alleged conduct does not qualify as securities fraud because it was not ''integrally related to the purchase and sale of securities,” Appellant's Supp. Br. 6, we conclude that the contention is without merit. In Bald Eagle Area School District, the Third Circuit considered a plaintiff’s allegation that a defendant bank had assisted in \"a massive Ponzi scheme ... perpetrated through the purchase and sale of [securities] in violation of securities laws including § 10(b) of the Securities Exchange Act of 1934,” and determined that the alleged scheme was \"at the heart of th[e plaintiff's] RICO action.” Id., 189 F.3d at 328. The court concluded that \"[a] Ponzi scheme ... continues only so long as new investors can be lured into it so that the early investors can be paid a return on their 'investment.' Consequently, conduct undertaken to keep a securities fraud Ponzi scheme alive is conduct undertaken in connection with the purchase and sale of securities.” Id. at 330; cf. Sett v. Zions First Nation Bank, No. CV-05-0684, 2006 WL 322469, at *10, 2006 U.S. Dist. LEXIS 6558, at *33-*34 (D.Ariz. Feb. 9, 2006) (stating that \"the question is not whether a plaintiff can state a claim under a non-securities-related predicate act, but whether the allegations that form the basis of that predicate act occur 'in connection with’ securities fraud,” and concluding that, in a Ponzi scheme, a bank's \"disbursements] of money from more recent investors to older investors” are actions \"in connection with” securities fraud). . The OSRecovery court did not, of course, have the benefit of the analysis in Fezzani, which was decided two months later." }, { "docid": "11511133", "title": "", "text": "numerous acts of what the plaintiffs characterized as bank, mail and wire fraud which defrauded the school districts of approximately $70 million. The bank used the funds in impermissible and risky investments in Collater-alized Investment Agreements (“CIAs”), fraudulently reported market values as the value declined, failed to maintain the requisite 100% collateral on the assets in its custody, and paid out more money to withdrawing clients than their fair share so the bank could continue to conceal losses and entice new money for investments. Just before the plaintiffs filed their suit, the SEC contemporaneously brought a civil enforcement action based on the same scheme as a securities fraud action. The Third Circuit affirmed the district court’s dismissal of the school districts suit as barred by the RICO Amendment. The proper inquiry according to the Third Circuit is not whether the wrongful conduct is “connected to and dependent upon securities fraud,” but whether the conduct is “actionable as securities fraud.” Bald Eagle, 189 F.3d at 330. The Third Circuit rejected plaintiffs’ “contention that the conduct alleged as predicate offenses was not in connection with the purchase or sale of securities” on the grounds that their argument completely ignores the hard reality that the conduct was an integral part of Black’s securities fraud Ponzi scheme. A Ponzi scheme is ongoing, and it continues only as long as new investors can be lured into it so that early investors can be paid a return on their “investment.” Consequently, conduct undertaken to keep a securities fraud Ponzi scheme alive is conduct undertaken in connection with the purchase and sale of securities. Id. The RICO Amendment bars claims based on conduct that could be actionable under the securities laws even when the plaintiff, himself, cannot bring a cause of action under the securities laws. The language of the statute does not require that the same plaintiff who sues under RICO must be the one who can sue under securities laws; its wording (“no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish" }, { "docid": "17286468", "title": "", "text": "in stating that the PSLRA was meant to eliminate the possibility that litigants might frame their securities claims under a mail or wire fraud claim.” (internal quotation marks omitted)). . After oral argument, but before the publication of MLSMK I, we issued an order directing the parties to submit supplemental briefing limited to the issue of PSLRA preclusion of the plaintiff's RICO claim. See Order, MLSMK Inv. Co. v. IP Morgan Chase & Co., No. 10-3040-cv (2d Cir. May 31, 2011), ECF No. 63. . MLSMK argues for the first time in its supplemental brief that the defendants’ conduct is not \"actionable securities fraud” because the \"the predicate acts alleged in this case could not possibly have induced MLSMK to purchase or sell securities.” It contends that the claim therefore does not satisfy the requirements of section 10(b) of the Securities Exchange Act. Compare Appellant’s Supp. Br. 6, with Appellees’ Supp. Br. 7-8. Even were we not to consider this argument waived because of the lateness of the hour in which it was asserted, we would nonetheless decline to address it because we conclude that the effect of the RICO Amendment does not turn on whether MLSMK would be able to state a valid claim against JPMC and Chase Bank under section 10(b). To the extent that MLSMK argues that the defendants’ alleged conduct does not qualify as securities fraud because it was not ''integrally related to the purchase and sale of securities,” Appellant's Supp. Br. 6, we conclude that the contention is without merit. In Bald Eagle Area School District, the Third Circuit considered a plaintiff’s allegation that a defendant bank had assisted in \"a massive Ponzi scheme ... perpetrated through the purchase and sale of [securities] in violation of securities laws including § 10(b) of the Securities Exchange Act of 1934,” and determined that the alleged scheme was \"at the heart of th[e plaintiff's] RICO action.” Id., 189 F.3d at 328. The court concluded that \"[a] Ponzi scheme ... continues only so long as new investors can be lured into it so that the early investors can be" }, { "docid": "16456312", "title": "", "text": "691-08, at H13, 704 (daily ed. Nov. 28, 1995) (statement of SEC Chairman Arthur Levitt). The amendment not only eliminates securities fraud as a predicate act in civil RICO claims, but also prevents plaintiffs from relying on other predicate acts if they are based on conduct that would have been actionable as securities fraud. See Bald Eagle Area Sch. Dist. v. Keystone Fin., Inc., 189 F.3d 321, 330 (3d Cir.1999). The Ouwingas’ RICO claims are based on the purchases of variable life insurance policies which, because they are “variable,” qualify as securities. The district court held that the PSLRA does not bar the claims of the Ouwingas because the “securities transactions” — the sale of the policies — were not integral to or “in connection with” the fraudulent scheme as a whole. The Defendants assert that even though the Ouwingas did not allege securities fraud, their complaint could present a claim for violation of securities laws and is thus barred by the PSLRA. The Defendants, however, fail to provide any specific reference to a securities action available based on the Amended Complaint’s allegations. Instead, the Defendants support their argument that fraud in the sale of the Benistar Plan was “in connection with” the purchase of securities by citing cases primarily involving fraud that directly coincided with the securities transaction. See, e.g., SEC v. Zandford, 535 U.S. 813, 820, 122 S.Ct. 1899, 153 L.Ed.2d 1 (2002) (“[Respondent's fraud coincided with the sales themselves.”); Swartz v. KPMG LLP, 476 F.3d 756, 761 (9th Cir.2007) (finding that “[t]he entire purpose” of the scheme was to allow the transfer of stock so that the plaintiffs basis in those assets would be artificially inflated). The Ouwingas respond that they do not allege fraud relating to the purchase of the variable life insurance policies by the Plan. They note that their fraud claim relates only to the tax consequences of the Benistar Plan, and it is merely incidental that the policies happened to be securities. The Southern District of New York articulated the distinction well: Plaintiffs do not allege a securities fraud, but rather a tax" }, { "docid": "11511134", "title": "", "text": "as predicate offenses was not in connection with the purchase or sale of securities” on the grounds that their argument completely ignores the hard reality that the conduct was an integral part of Black’s securities fraud Ponzi scheme. A Ponzi scheme is ongoing, and it continues only as long as new investors can be lured into it so that early investors can be paid a return on their “investment.” Consequently, conduct undertaken to keep a securities fraud Ponzi scheme alive is conduct undertaken in connection with the purchase and sale of securities. Id. The RICO Amendment bars claims based on conduct that could be actionable under the securities laws even when the plaintiff, himself, cannot bring a cause of action under the securities laws. The language of the statute does not require that the same plaintiff who sues under RICO must be the one who can sue under securities laws; its wording (“no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962”) does not make such a connection. See Hemispherx Biopharma, 1999 WL 144109 at *4 (agreeing with Defendants that “when Congress stated that ‘no person’ could bring a civil RICO action alleging conduct that would have been actionable as securities fraud, it meant just that. It did not mean ‘no person except one who has no other actionable securities fraud claim.’ It did not specify that the conduct had to be actionable as securities fraud by a particular person to serve as a bar to a RICO claim by that same person.”). Even if the provision were deemed unclear or ambiguous, the legislative history indicates a concern that securities fraud defendants not be exposed to multiple kinds of suits and especially the need to limit the “treble damage blunderbuss” of a RICO claim. Chairman of the SEC Arthur Levitt testified before the Telecommunications and Finance Subcommittee of the House Commerce Committee during hearings on the RICO Amendment on February 10, 1995, reprinted in 1996 U.S.C.C.A.N. 679, 746, Because the securities laws" }, { "docid": "17438749", "title": "", "text": "R & R interprets the PSLRA too narrowly in the context of this case. S.E.C. v. Zandford, 535 U.S. 813, 122 S.Ct. 1899, 153 L.Ed.2d 1 (2002), teaches that while the “in connection with” requirement for securities fraud is not unlimited in scope, it is extremely broad. All that is necessary to satisfy that requirement is proof of “a fraudulent scheme in which the securities transactions and breaches of fiduciary duty coincide.” 535 U.S. at 825, 122 S.Ct. 1899. The breadth of this standard is illustrated by footnote 4 to the Zandford opinion. There, the Supreme Court provided two examples of conduct that “would not include the requisite connection to a purchase or sale of securities”: where “a broker embezzles cash from client’s account” or where a broker “takes advantage of the fiduciary relationship to induce his client into a fraudulent real estate transaction.” Id. at 825 n. 4, 122 S.Ct. 1899. Since these examples involve conduct that is only tangentially connected to the sale of securities, the obvious implication is that conduct less tangentially related satisfies the “in connection with” test. The Court fully agrees with the Magistrate Judge that RICO predicate acts 2, 6 and 8 are actionable as securities fraud. However, the Court also views the other predicate acts as sufficiently connected to the sale of securities to support a claim of securities fraud. In other words, the remaining predicate acts allege breaches of duty coincident with the securities transactions that were part of the tax strategy offered by KPMG. Because Jacoboni contends the wrongful acts were committed as part of a single fraudulent scheme, all of the acts must be considered together for securities fraud purposes. In that regard, the Court agrees with KPMG’s characterization of Jacoboni’s RICO claim: “There are no ‘non-securities components’ to the alleged scheme to defraud asserted in Jacoboni’s RICO claim. Jacoboni asserts that he was the victim of a single scheme designed to fraudulently induce him to invest in UBS stock and other securities.” Doc. 184 at 16. In other words, “without the purchase and sale of UBS stock and options" }, { "docid": "4810821", "title": "", "text": "SAC ¶ 21. As a result, under MLSMK the PSLRA’s RICO amendment prevents the Trustee from basing his RICO claims on any conduct related to the “Money In” component of the purported scheme. The Trustee argues that the PSLRA does not bar prosecution here because the connection between the foreign investors and Madoff Securities is too attenuated to support a claim under the Securities Exchange Act based on Madoff Securities’ fraud. See Anwar v. Fairfield Greenwich Ltd., 728 F.Supp.2d 372, 399 (S.D.N.Y.2010) (finding that the relationship between Madoff Securities and an investor in a fund that fed money to Madoff Securities so attenuated that it “snaps even the most flexible rubber bands”). Nonetheless, the Second Circuit has made it clear that the RICO Amendment does not apply only where a valid fraud claim exists as an alternative to a RICO claim. MLSMK, 651 F.3d at 277 (barring a RICO claim “even where a plaintiff cannot itself pursue a securities fraud action against the defendant”). Moreover, as the Court’s previous discussion of standing shows, the Court would have to altogether pervert existing doctrine to arrive at an interpretation of the RICO amendment that prevented those like the plaintiff in MLSMK who were directly injured, from invoking RICO, but allowed the Trustee to sue for indirect injury based on the same facts. Next, the Trustee argues that the Securities Exchange Act, and thus the RICO amendment, does not apply to financial products that, like those the defendants sold here, did not trade on an American exchange. See Morrison v. Nat'l Australia Bank Ltd., — U.S. -, 130 S.Ct. 2869, 2884, 177 L.Ed.2d 535 (2010) (“[I]t is in our view only transactions in securities listed on domestic exchanges, and domestic transactions in other securities, to which § 10(b) applies.”). According to the Trustee, then, even though he can neither prosecute foreign securities fraud nor base a RICO claim on domestic securities fraud, he can base a RICO claim on the prosecution of foreign securities fraud. In effect, the Trustee would fashion a RICO exception to the Exchange Act’s territorial reach, allowing artfully pled" }, { "docid": "18176077", "title": "", "text": "[plaintiffs’] Complaint[s were] filed.” Id. ¶ 220. The enterprise’s affairs, moreover, were allegedly conducted through a pattern of racketeering activity, namely mail fraud, wire fraud, and bank fraud. Id. ¶ 222. In addition to allegedly committing the above RICO violation, defendahts allegedly conspired to violate RICO. According to plaintiffs, “[d]efendants organized -and implemented the scheme, and ensured it continued uninterrupted by concealing their manipulation of LIBOR from investors, including [plaintiffs].” Id. ¶ 232. Plaintiffs allege that they suffered direct and foreseeable injury from defendants’ scheme by “unknowingly pafying] money to Defendants for LIBOR based financial instruments that paid interest at a manipulated rate, and in fact collecting] less interest than they would have absent the conspiracy.” Id. ¶ 234. 2. The PSLRA Plaintiffs’ RICO claim is barred by the PSLRA. In a provision that has become known as the “RICO Amendment,” the PSLRA amended RICO to provide that “no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962.” 18 U.S.C. § 1964(c). This provision is interpreted “broadly,” Eagletech Commc’ns Inc. v. Citigroup, Inc., No. 07-60668-CIV, 2008 WL 3166533, at *9 (S.D.Fla. June 27, 2008), and bars a RICO claim “even where a plaintiff cannot itself pursue a securities fraud action against the defendant,” MLSMK Inv. Co. v. JP Morgan Chase & Co., 651 F.3d 268, 277 (2d Cir.2011); see also Gilmore v. Gilmore, No. 09 Civ. 6230, 2011 WL 3874880, at *4 (S.D.N.Y. Sept. 1, 2011). In other words, a plaintiff is prohibited from bringing a RICO claim not only when she, herself, could have brought a securities fraud claim based on the RICO predicate acts, but also when the SEC could have brought such a claim. See Eagletech, 2008 WL 3166533, at *14 (holding that “the PSLRA acts as a bar to Plaintiffs’ RICO claims” because “the predicate acts are actionable as securities fraud and may be prosecuted by the SEC”). The question here, therefore, is whether the predicate acts of plaintiffs’ RICO claim could have been the subject of a" }, { "docid": "17438745", "title": "", "text": "with the purchase or sale of a security.) As such, the PSLRA bar does not serve to insulate KPMG from Plaintiffs entire RICO claim, but only applies to prohibit Plaintiff from “rely[ing] upon any conduct that would have been actionable as fraud in the purchase or sale of securities to estab lish a violation of section 1962” — -that is, that conduct set forth in Plaintiffs alleged predicate acts of mail fraud 2 and wire fraud 6 and 8. The Court recognizes that other courts appear to take an all or nothing approach to the bar. See Burton v. Kertr-Crest Services, Inc., 127 F.Supp.2d 673, 676 (E.D.Pa.2001) (rejecting argument that some predicate acts are not actionable as securities fraud and are thus separate and independent predicate acts for RICO purposes); Bald Eagle, supra, 189 F.3d at 330 (rejecting a “surgical presentation” of the claim); and Stephenson v. Deutsche Bank AG, 282 F.Supp.2d 1032, 1072 n. 27 (D.Minn.2003) (same). In each of these cases, however, there was a determination that the other predicate acts were so “closely connected to and dependent upon” the securities fraud as to “amount to” securities fraud. See Burton, supra, at 677 (noting “there is no question that the whole of Plaintiffs allegations concern a fraudulent transaction of securities” and stating “it is obvious that the entire cause of action surrounding the pension fund scheme involves some type of securities fraud and that the alleged acts are actionable under securities fraud statutes”); Bald Eagle, supra at 330 (finding that conduct undertaken to keep a securities fraud Ponzi scheme alive is conduct undertaken in connection with the purchase and sale of securities since the conduct induces new investments); and Stephenson, supra at 1072, fn. 27 (finding that the challenged activity was “not distinct from the larger scheme, which the Court has already ruled is actionable as securities fraud.”) No such connection is present here with respect to the surviving predicate acts. Preparation and filing of tax returns (and the collection of fees for tax planning services and opinions) are acts distinct from any securities transaction and are not" }, { "docid": "17286463", "title": "", "text": "our sister courts nonetheless concluded that the plaintiffs’ RICO claims were barred by the RICO Amendment. CONCLUSION For the foregoing reasons, we conclude that the PSLRA’s RICO Amendment, 18 U.S.C. § 1964(c), bars a plaintiff from asserting a civil RICO claim premised upon predicate acts of securities fraud, including mail or wire fraud, even where the plaintiff could not bring a private securities law claim against the same defendant. We therefore affirm the judgment of the district court dismissing MLSMK’s RICO claim (Count One) against the defendants JPMC and Chase Bank on that ground. . A \"Ponzi scheme” is one “in which earlier investors' returns are generated by the influx of fresh capital from unwitting newcomers rather than through legitimate investment activity.” SEC v. Credit Bancorp, Ltd., 290 F.3d 80, 89 (2d Cir.2002) (internal quotation marks omitted). For a description of the operations of the eponymous Charles Ponzi himself, see Cunningham v. Brown, 265 U.S. 1, 7-9, 44 S.Ct. 424, 68 L.Ed. 873 (1924). . The subject matter jurisdiction of the district court was premised on \"both federal question and diversity jurisdiction,” pursuant to 28 U.S.C. §§ 1331 and 1332(a)(1). J.A. 7 (Compl. ¶ 9). . According to the complaint, Bear Stearns was among Madoff's chief market-making trading partners until JPMC purchased the investment house in March 2008. MLSMK asserts that JPMC thereafter kept in place Bear Stearns's system, which \"automatically defaulted to BMIS as the market maker.” J.A. 9 (Compl. ¶ 16). The plaintiff contends on information and belief that \"[t]his was an unusual accommodation” for which Madoff paid Bear Steams (and later JPMC) \"substantial fees.” Id. .On December 11, 2008, Madoff was arrested and charged with securities fraud. The SEC froze all of his and BMIS’s assets. On March 12, 2009, Madoff pleaded guilty to an eleven-count criminal information and admitted that BMIS's investment-advisory business was a Ponzi scheme and that he had \"never executed a single trade on behalf of any client” of that business. J.A. 18 (Compl. ¶¶ 45-46). . MLSMK alleges that the Fairfield Greenwich Group \"directed clients to Madoff’s investment advisory business ... and" }, { "docid": "4152943", "title": "", "text": "conduct giving rise to those predicate offenses amounts to securities fraud. Id. at 329-30. Similarly, in the present case, the predicate acts alleged by plaintiff were undeniably undertaken in connection with the alleged securities fraud. The court cannot accept plaintiffs implicit contention that because the securities aspects of this case are pled in a separate ERISA count, the bases for which were discovered at a later time period than the bases for the RICO count, plaintiffs have avoided the bar of the RICO amendment. Particularly at the hearing on this matter, plaintiffs put much emphasis on the portion of Bald Eagle that stresses that district courts should not inquire as to whether the conduct alleged is “ ‘intrinsically connected to, and dependent upon’ conduct actionable as securities fraud.” Id. at 330 (citing lower court opinion). The court does not rule, however, that the underlying financial improprieties were “intrinsically connected to” the securities fraud: the underlying financial improprieties are actionable as securities fraud, as clearly demonstrated by the ERISA claim and the Pennsylvania complaint as a whole. As the Bald Eagle court explained in rejecting a similar argument, “conduct undertaken to keep a securities fraud Ponzi scheme alive is conduct undertaken in connection with the pur- • chase and sale of securities.” 189 F.3d at 330. Plaintiff argues that even if the court finds that the predicate acts were actionable as securities fraud, her conspiracy claim is not precluded by the revisions to the RICO statute because she was harmed by defendants’ overt acts in furtherance of the conspiracy of demoting and filing her, which are obviously not actionable in securities fraud. Defendants respond, however, that even if the injury of being demoted and fired is not actionable as securities fraud and is a cognizable injury, plaintiff is left with no predicate acts. That is, defendants state “the issue before the Supreme Court in Beck v. Prupis is irrelevant as to whether a RICO cause of action can exist at all if the plaintiff has failed to plead any predicate acts to support the RICO claim.” Defs. First Reply Mem. at" }, { "docid": "6168678", "title": "", "text": "Ponzi scheme. A Ponzi scheme is ongoing, and it continues only so long as new investors can be lured into it so that the early investors can be paid a return on their “investment.” Consequently, conduct undertaken to keep a securities fraud Ponzi scheme alive is conduct undertaken in connection with the purchase and sale of securities. For example, the CIAs purchased by the School Districts were worth significantly less than their purchase price because of the shortfall in the collateral in the funds already under management. However, it is alleged that Mid-State either misrepresented, or failed to disclose, the collateral shortfall in account statements it prepared. This misrepresentation/omission, induced new investments. Such conduct may well constitute wire, mail or bank fraud, but it was also undertaken in connection with the purchase of a security. Thus, it cannot support a civil RICO claim after enactment of the PSLRA. The District Court held that the RICO Amendment barred the School Districts’ civil RICO action because the conduct underlying the RICO claims is “intrinsically connected to, and dependent upon conduct which would be actionable under Federal securities law.” Dist. Ct. Op. at 13. But, the proper focus of the analysis is on whether the conduct pled as predicate offenses is “actionable” as securities fraud — not on whether the conduct is “intrinsically connected to, and dependent upon” conduct actionable .as securities fraud. • Because the District Court appeared to center its attention on whether the conduct alleged as predicate offenses was connected to and dependent upon securities fraud, rather than on whether the conduct was actionable as securities fraud, the School Districts argue that the District Court gave an “overly expansive” reading to the RICO Amendment. Appellants’ Br. at 11. However, on a close reading of the District Court’s opinion, it is clear that the District Court’s analysis was properly focused on whether the conduct was actionable as securities fraud. The tenor of the opinion demonstrates that the District Court found the conduct alleged as predicate acts was so closely connected to and dependent upon conduct undertaken in connection with the purchase" }, { "docid": "4810818", "title": "", "text": "if it had not allegedly received a “flood of cash” from defendants. Any attempt to estimate that amount of damage would have to consider such imponderable counterfactuals as whether Madoff Securities might have obtained funds from other sources and how much earlier Madoff Securities would have been caught or entered bankruptcy without defendants’ alleged contributions. Second, neither the Court nor any jury has any reliable method for apportioning damages among Madoff Securities’ investors. How much should Madoff Securities’ investors who invested before the advent of HAM in 2004 receive compared to those who invested afterwards? Finally, the Court lacks a reason to “grapple with these problems” since those who invested in Bank Austria’s, UniCredit’s, and Pioneer’s Madoff Securities feeder funds have direct causes of action for fraud, in Europe if not in the United States. In other words, application of the very reasons that Holmes identified for the tight requirement of proximate cause in RICO cases here indicates that the Trustee has not satisfied that requirement. Accordingly, the Court finds that the Trustee lacks standing to bring the RICO claims, and dismisses those claims as to the four moving defendants. The Trustee’s RICO claims fail for another, independent reason, namely that, after the Court excludes allegations in the SAC that it cannot consider under the so-called ‘RICO amendment’ set forth in the Private Securities Litigation Reform Act (“PSLRA”), the SAC fails to state any RICO claim. Under the RICO amendment, “no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962.” 18 U.S.C. § 1964(c). The Second Circuit has recently held that this language bars civil RICO claims, including claims for wire and mail fraud, “alleging predicate acts of securities fraud, even where a plaintiff cannot itself pursue a securities fraud action against the defendant.” MLSMK Inv. Co. v. JP Morgan Chase & Co., 651 F.3d 268, 277 (2d Cir.2011); see also H.R. Rep. 104-369, at 41 (1995), reprinted in 1995 U.S.C.C.A.N. 730, 746 (noting that RICO amendment would bar plaintiffs from “plead[ing]" }, { "docid": "16456313", "title": "", "text": "action available based on the Amended Complaint’s allegations. Instead, the Defendants support their argument that fraud in the sale of the Benistar Plan was “in connection with” the purchase of securities by citing cases primarily involving fraud that directly coincided with the securities transaction. See, e.g., SEC v. Zandford, 535 U.S. 813, 820, 122 S.Ct. 1899, 153 L.Ed.2d 1 (2002) (“[Respondent's fraud coincided with the sales themselves.”); Swartz v. KPMG LLP, 476 F.3d 756, 761 (9th Cir.2007) (finding that “[t]he entire purpose” of the scheme was to allow the transfer of stock so that the plaintiffs basis in those assets would be artificially inflated). The Ouwingas respond that they do not allege fraud relating to the purchase of the variable life insurance policies by the Plan. They note that their fraud claim relates only to the tax consequences of the Benistar Plan, and it is merely incidental that the policies happened to be securities. The Southern District of New York articulated the distinction well: Plaintiffs do not allege a securities fraud, but rather a tax fraud. There was nothing per se fraudulent from a securities standpoint about the financial mechanism and schemes used to generate the tax losses. While the alleged fraud could not have occurred without the sale of securities at the inflated basis (which created the artificial loss to offset Plaintiffs’ major capital gains), it is inaccurate to suggest that the actual purchase and sale of securities were fraudulent. In actuality, the securities performed exactly as planned and marketed; it was the overall scheme that allegedly defrauded the Plaintiffs and Class Members----This Court as well finds that the alleged fraud here involved a tax scheme, with the securities transactions only incidental to any underlying fraud. Accordingly this Court will not apply the PSLRA bar to Plaintiffs’ RICO claims. Kottler v. Deutsche Bank AG, 607 F.Supp.2d 447, 458 n. 9 (S.D.N.Y.2009). The Ninth Circuit relied on similar reasoning when it found a tax-shelter RICO claim was not barred by the PSLRA, holding that it was “not sufficient merely to allege a defendant has committed a proscribed act in a" }, { "docid": "9740598", "title": "", "text": "1899. See also A.T. Brod & Co. v. Perlow, 375 F.2d 393 (2d Cir.1967) (\"it is established that a 10b-5 action will survive even though the fraudulent scheme or device is unrelated to 'investment value' ”). . Zandford, 535 U.S. at 820, 122 S.Ct. 1899. . See Compl. ¶ 64. . Bald Eagle Area Sch. Dist. v. Keystone Fin., Inc., 189 F.3d 321, 330 (3d Cir.1999). . Zandford, 535 U.S. at 820, 122 S.Ct. 1899 (emphasis added). . Id. . Jacoboni, 314 F.Supp.2d at 1179. As noted, Jacoboni differs from the present case, in that the Jacoboni court held defendant’s fraud was in connection with the securities transactions that the FLIP strategy used to create losses, whereas here, defendants’ fraud was in connection with the sale of Mr. Seippel's stock. The reasoning behind Jacoboni, however, is relevant here. In that case, too, the alleged misrepresentations related to the legitimacy of the tax shelter, not to the value of the securities. The Jacoboni plaintiffs, like the Seippels, argued that the securities transactions were merely incidental to the fraudulent scheme, the purpose of which was \"tax advice fraud.” Id. at 1180. The Jacoboni court nevertheless found that the misrepresentations were \"sufficiently connected to” and \"coincident with” the sales of securities. Id. at 1179. . Zandford, 535 U.S. at 820, 122 S.Ct. 1899. . As the PSLRA bar disposes of the Seippels’ RICO claims, there is no need to rule on whether the Seippels properly alleged each element of a RICO claim. . Stuart v. American Cyanamid Co., 158 F.3d 622, 627 (2d Cir.1998) (citing Guaranty Trust Co. v. York, 326 U.S. 99, 108-09, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)). . See N.Y. C.P.L.R. § 202 (McKinney 2003). . Global Fin. Corp. v. Triarc Corp., 93 N.Y.2d 525, 529, 693 N.Y.S.2d 479, 715 N.E.2d 482 (1999). . See Shipman v. Kruck, 267 Va. 495, 501, 593 S.E.2d 319 (2004); Va.Code Ann. § 8.01-230 (2004). . See N.Y. C.P.L.R. § 214(6). . Ackerman v. Price" }, { "docid": "11511219", "title": "", "text": "designed to conceal Enron’s financial condition” while they personally profited and maintained “the illusion of Enron’s profitability and financial strength, and the Alusión that Enron was a legitimate enterprise and profitable company, and thereby induced Enron’s 24,000 employees to invest in and retain Enron stock in their retirement plans.” Complaint at ¶ 3. Athough draped in the language of RICO, the Tittle Plaintiffs’ allegations of wrongdoing in carrying out a scheme to defraud through various combinations of Defendants, characterized as “RICO enterprises,” by means of “predicate acts” of embezzlement, mail and wire fraud, obstruction of justice, and interstate transportation offenses, are substantively virtually identical to the Ponzi-scheme allegations brought in Newby, against nearly the same Defendants. The alleged acts are all offenses constituting misrepresentations or concealment of Enron’s real financial condition to inflate the value of Enron stock and to keep investor money flowing into the alleged lucrative pyramid scheme that permitted Defendants to loot the corporation, and are actionable as parts of the Newby Ponzi scheme Bald Eagle, 189 F.3d at 330 (Where alleged RICO predicate offenses are an integral part of and sustain an alleged securities fraud Ponzi scheme, they are intrinsically conduct undertaken “in connection with the purchase or sale of securities” and are barred by the RICO Amendment; allowing a surgical presentation of parts of that scheme would “undermine the congressional intent behind the RICO Amendment”). The RICO and state-law civil conspiracy and accountant negligent misrepresentation claims of Tittle are also actionable as securities fraud claims and have been so characterized in Newby. Defendants allegedly conspired to commit a pattern of racketeering activity that equates to the Ponzi scheme of Newby and engaged in many of the same transactions that support the conspiracies alleged under ERISA and the federal securities statutes to create the same illusion of financial strength by means of (1) the same or same kinds of “extensive ‘off-book’ transactions to hide and shift debt from its balance sheets,” (2) making, certifying, and issuing false financial statements that violated GAAP and GAAS and filing misleading reports with the SEC with the knowledge or reckless" }, { "docid": "17286462", "title": "", "text": "connection with the purchase of a security” (internal quotation marks omitted)); Howard v. Am. Online Inc., 208 F.3d 741, 749 (9th Cir.) (holding that the RICO Amendment bar applies even where the plaintiff does not have standing to sue under securities laws because the plaintiff did not buy or sell securities), cert, denied, 531 U.S. 828, 121 S.Ct. 77, 148 L.Ed.2d 40 (2000); Bald Eagle Area Sch. Dist., 189 F.3d at 330 (Third Circuit decision expressing reasoning similar to that in Fezzani and Thomas H. Lee and concluding that the PSLRA precludes a RICO claim based on a Ponzi scheme that was accomplished by the purchase and sale of securities). While none of these cases addresses the precise question presented here, they do deal with other circumstances in which — for various reasons — the plaintiff could not make out a private securities claim against the defendant. Despite the fact that this result left the plaintiffs in those cases, like the plaintiff here, without recourse to a private cause of action under the securities laws, our sister courts nonetheless concluded that the plaintiffs’ RICO claims were barred by the RICO Amendment. CONCLUSION For the foregoing reasons, we conclude that the PSLRA’s RICO Amendment, 18 U.S.C. § 1964(c), bars a plaintiff from asserting a civil RICO claim premised upon predicate acts of securities fraud, including mail or wire fraud, even where the plaintiff could not bring a private securities law claim against the same defendant. We therefore affirm the judgment of the district court dismissing MLSMK’s RICO claim (Count One) against the defendants JPMC and Chase Bank on that ground. . A \"Ponzi scheme” is one “in which earlier investors' returns are generated by the influx of fresh capital from unwitting newcomers rather than through legitimate investment activity.” SEC v. Credit Bancorp, Ltd., 290 F.3d 80, 89 (2d Cir.2002) (internal quotation marks omitted). For a description of the operations of the eponymous Charles Ponzi himself, see Cunningham v. Brown, 265 U.S. 1, 7-9, 44 S.Ct. 424, 68 L.Ed. 873 (1924). . The subject matter jurisdiction of the district court was premised" }, { "docid": "6168677", "title": "", "text": "Districts’ position ignores the reality that the same set of facts can support convictions for mail fraud, wire fraud, bank fraud and securities fraud without giving rise to any multiplicity problems. See United States v. Faulhaber, 929 F.2d 16 (1st Cir.1991) and United States v. Reed, 639 F.2d 896 (2d Cir.1981). Each of those offenses requires proof of a fact which the others do not. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Consequently, a plaintiff cannot avoid the RICO Amendment’s bar by pleading mail fraud, wire fraud and bank fraud as predicate offenses in a civil RICO action if the conduct giving rise to those predicate offenses amounts to securities fraud. Allowing such surgical presentation of the cause of action here would undermine the congressional intent behind the RICO Amendment. Second, the contention that the conduct alleged as predicate offenses was not in connection with the purchase or sale of securities completely ignores the hard reality that the conduct was an integral part of Black’s securities fraud Ponzi scheme. A Ponzi scheme is ongoing, and it continues only so long as new investors can be lured into it so that the early investors can be paid a return on their “investment.” Consequently, conduct undertaken to keep a securities fraud Ponzi scheme alive is conduct undertaken in connection with the purchase and sale of securities. For example, the CIAs purchased by the School Districts were worth significantly less than their purchase price because of the shortfall in the collateral in the funds already under management. However, it is alleged that Mid-State either misrepresented, or failed to disclose, the collateral shortfall in account statements it prepared. This misrepresentation/omission, induced new investments. Such conduct may well constitute wire, mail or bank fraud, but it was also undertaken in connection with the purchase of a security. Thus, it cannot support a civil RICO claim after enactment of the PSLRA. The District Court held that the RICO Amendment barred the School Districts’ civil RICO action because the conduct underlying the RICO claims is “intrinsically connected to, and" } ]

[ { "docid": "9966774", "title": "", "text": "for transporting illegal aliens. Perez-Sosa stated his passengers were from Mexico, the passengers spoke no English, they had no resident alien cards, green cards, or passports, and three of the passengers possessed unofficial identification cards issued two days before in Arizona. See United States v. Salinas-Calderon, 728 F.2d 1298, 1301 (10th Cir.1984); see also United States v. One 1982 Chevrolet Crew-Cab Truck, 810 F.2d 178, 181 (8th Cir.1987). Perez-Sosa also contends his right to confront witnesses against him was violated when the district court admitted the videotaped deposition testimony of a government witness, one of the passengers in Perez-Sosa’s van, over Perez-Sosa’s objection at trial. We conclude admission of the deposition was proper. The videotaped deposition of a witness to the transporting of illegal aliens “who has been deported or otherwise expelled from the United States ... may be admitted into evidence in an action brought for [transporting illegal aliens] if the witness was available for cross-examination and the deposition otherwise 'complies with the Federal Rules of Evidence.” 8 U.S.C.A. § 1324(d) (West Supp.1998). Perez-Sosa concedes he was present at the deposition and the witness was subject to cross-examination, but contends the government failed to show the witness was unavailable at trial. See United States v. Santos-Pinon, 146 F.3d 734, 736 (9th Cir.1998) (government must establish unavailability of witness before submitting deposition testimony under § 1324(d)). At Perez-Sosa’s trial, the government showed the witness had already been deported to Mexico and the Mexican authorities would not extradite an individual based on a material witness warrant. Under these circumstances, we conclude use of the deposition testimony did not violate the Confrontation Clause. See United States v. Terrazas-Montano, 747 F.2d 467, 469 (8th Cir.1984). The witness was unavailable and it would have been futile to require the government to show it could not procure the witness’s attendance. See id.; Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Accordingly, we affirm Perez-Sosa’s convictions." } ]

[ { "docid": "17518038", "title": "", "text": "at trial without the presence of the defendant at the depositions. 1. Rule 15 When the government is unable to secure a witness’s presence at trial, Rule 15 is not violated by the admission of videotaped testimony so long as the government makes diligent efforts to secure the defendant’s physical presence at the deposition and, failing this, employs procedures that are adequate to allow the defendant to take an active role in the deposition proceedings. See United States v. Gifford, 892 F.2d 263, 265 (3d Cir.1989); United States v. Salim, 855 F.2d 944, 950 (2d Cir.1988). Here, the Canadian witnesses were unavailable for trial because they were beyond the subpoena power of the United States and refused voluntarily to attend. The Government was unable to secure Medjuck’s presence at the Canadian depositions because there was no mechanism in place to allow United States officials to transfer Medjuck over to Canadian authorities at the Canadian border, and secure his return to the United States in a timely fashion after the depositions. Finally, the Government set up an elaborate system to allow Medjuck to witness the depositions live by video feed and to participate with his attorneys by private telephone connection during the depositions taken in Canada. The proceedings were videotaped. Medjuck’s level of involvement was sufficient under Salim and Gifford, We conclude that the district court did not err in finding that the Government satisfied the requirements for the exception to Rule 15’s presence requirement. 2. Confrontation Clause The Supreme Court has recognized an exception to a defendant’s confrontation rights “where denial of such confrontation is necessary to further an important public policy and ... the reliability of the testimony is otherwise assured.” Maryland v. Craig, 497 U.S. 836, 850, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). More specifically, an exception has been recognized for admission of deposition testimony where a witness is unavailable to testify at trial; the Third Circuit has set forth a test for determining whether deposition testimony falls within that exception. See United States v. Kelly, 892 F.2d 255, 261 (3d Cir.1989). First, the deposition testimony must" }, { "docid": "15740395", "title": "", "text": "additional steps to secure the presence of the witness at trial. In the instant case the service was November 11, 1976, for a trial date more than three months later, February 22, 1977. We believe a fair reading of Roberts and the other cases requires that the prosecution show what efforts have been made closer to the trial date. A simple statement by the prosecutor that the state had issued a subpoena and bench warrant and “had been looking for her” is not enough. The court must be informed of when the prosecution learned that the witness might not appear and of the steps taken to secure the witness’ presence after the likelihood of nonappearance became known. Because the prosecution failed to present such evidence, we find it failed to establish a predicate for the admission of the taped testimony. C The Supreme Court recently held that before overturning a state court finding, “a habeas court should include in its opinion granting the writ the reasoning which led it to conclude that any of the first seven factors [of 28 U.S.C. § 2254(d) ] were present or the reasoning which led it to conclude that the state finding was ‘not fairly supported by the record.’ ” Sumner v. Mata, 449 U.S. 539, 551, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981). Mindful of this directive, we conclude that the state court’s finding that the prosecution made a good faith effort to produce the witness loses its presumption of correctness because “the material facts were not adequately developed at the State court hearing.” 28 U.S.C. § 2254(d)(3). We believe the evidence presented on this point is simply inadequate to provide a basis for the court’s decision. To sustain the holding of good faith effort on this record would be to seriously erode the good faith requirement. As the record now stands on the constitutional unavailability for trial of the witness, the admission of her taped testimony does not satisfy sixth amendment standards. Nevertheless, because Roberts, clarifying the definitive standards, was decided after this case was tried, and because the prosecutor’s efforts" }, { "docid": "14501629", "title": "", "text": "hearsay statement was prejudicial error unless the evidence affirmatively established the contrary. See id. Thus, we are of the view that the harmless error review that the Iowa Supreme Court conducted was essentially the same as that required by Chapman. Accordingly, we would be free to proceed under Brecht. However, we need not decide which standard to apply here, because under even the stringent standard, we find the admission of the statement was harmless “beyond a reasonable doubt.” In the context of a Confrontation Clause violation, to determine whether error is harmless beyond a reasonable doubt, we must examine the other evidence adduced at trial and determine whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. See Lufkins v. Leapley, 965 F.2d 1477, 1481 (8th Cir.1992). We must consider a host of factors including: (1) the importance of the witness’s testimony to the prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or absence of corroborating or contradicting testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution’s case. See Orndorff v. Lockhart, 998 F.2d 1426, 1431 (8th Cir.1993). This was not a close case. Our review of the record shows that this case was much more than a “battle of the experts,” with Dr. DiMaio’s testimony being pivotal. The prosecution assembled a solid case based on compelling circumstantial evidence. Barrett had purchased a $50,000 life insurance policy on Cynthia Walker. The policy contained a double indemnity clause in case of nonnatural death. The State offered proof that Carol Willits purchased the murder (and ostensible suicide) weapon at Barrett’s request. The State further presented evidence that a car with rectangular taillights, similar to Barrett’s parents’ Buick, had been seen on the road where Willits died. There was also evidence that the blindfold used on Carol Willits was made of fabric that matched a pillowcase found in Barrett’s parents’ home. The most damaging evidence, the admission of which the court affirms today, was contained in Barrett’s earlier" }, { "docid": "22240019", "title": "", "text": "District Director of the Citizenship and Immigration Services of the Department of Homeland Security certified that “after a diligent search [of two agency databases,] no record was found to exist indicating that [Orozco-Acosta] obtained consent ... for re-admission in the United States.” Because the government concedes that the introduction of the CNR violated Orozco-Acosta’s confrontation right, “we must remand for a new trial unless the government demonstrates beyond a reasonable doubt that admission of the evidence was harmless.” United States v. Norwood, 603 F.3d 1063, 1068 (9th Cir.2010). In evaluating whether a Confrontation Clause violation is harmless, we consider a variety of factors, including: the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of crossexamination otherwise permitted, and, of course, the overall strength of the prosecution’s case. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). We conclude that the government has met its burden of proving harmlessness in this case. First, the CNR was cumulative of other evidence. Agent Holmes testified that if Orozco-Acosta had filed the form required to reapply for admission, this fact would have been documented both in OrozcoAcosta’s A-File and in the agency’s C.L.A.I.M.S. database, but no such documentation appeared in either place. Any doubt arising from the possibility that Agent Holmes’s record search was less comprehensive than the search conducted for the CNR was allayed by the introduction of Orozco-Acosta’s own sworn statement that he had not applied for permission to re-enter, as well as the arresting agent’s testimony that Orozco-Acosta admitted that he lacked documents allowing him to be in the United States legally. The jury also could infer that OrozcoAcosta lacked permission to re-enter the United States from the circumstances of his apprehension: rather than entering through a designated Port of Entry, as would be expected if Orozco-Acosta had received permission to re-enter the United States, Orozco-Acosta was apprehended in a desolate, inhospitable, and uninhabited border area. Thus, the government’s case" }, { "docid": "14487501", "title": "", "text": "infer that the presence of the witness on board was still essential. By this time, the ship was nearing completion of its training period, and the presence of the witness on board may no longer have been a matter of “military necessity.” Because the information provided to the military judge was not current, the actual unavailability of the witness at the time the deposition was offered into evidence was not established. Cf. Burns v. Clusen, 798 F.2d 931, 943 (7th Cir.1986) (Government’s burden to establish “unavailability is a continuing one”). Moreover, it is clear that the refresher training had been scheduled for months and was known well in advance by trial counsel. In spite of this, there appears to have been no accommodation made in setting the date of trial so the witness could testify before the factfinder. Certainly, the record provides no explanation why trial could not have commenced earlier or concluded later so the temporary unavailability of the witness would not have necessitated resort to “a weaker substitute for live testimony.” United States v. Inadi, 106 S.Ct. at 1126. See United States v. Rothbart, 653 F.2d 462 (10th Cir.1981). In fact, trial on the merits concluded on November 30 — only 2 days before the claimed unavailability period was to end. We conclude that the military judge abused his discretion in determining Lieutenant Commander Klich was unavailable to testify at trial based on the sparse and stale facts before him. However, automatic reversal does not follow. Even constitutional error may not require reversal if harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Burns v. Clusen, supra. See Delaware v. Van Arsdall, supra, 106 S.Ct. 1431. The inquiry is whether the error was harmless in light of a host of factors, ... includpng] the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength" }, { "docid": "22265917", "title": "", "text": "any attempt to contact a deported witness deemed “unavailable,” it was unnecessary to resolve this issue to decide Olafson’s appeal. See id. at 566 n. 2; cf. United States v. Medjuck, 156 F.3d 916, 920 (9th Cir.1998) (“Here, the Canadian witnesses were unavailable for trial because they were beyond the subpoena power of the United States and refused voluntarily to attend.”), cert. denied, 527 U.S. 1006, 119 S.Ct. 2343, 144 L.Ed.2d 239 (1999); Christian, 41 F.3d at 467 (finding that the prosecution’s efforts were reasonable and that witnesses were “unavailable” under Rule 804 when “the prosecution asked the witnesses if they would come to the United States to testify at trial,” and “they refused”); United States v. Sines, 761 F.2d 1434, 1441 (9th Cir.1985) (finding that a witness was “unavailable” under Rule 804 when, “after a series of contacts through various diplomatic channels, the Thai government had clearly indicated its unwillingness to permit [the witness] to leave Thailand to testify”). Under the circumstances of this case, we hold that the district court abused its discretion when it found that Macias-Limon was “unavailable” for purposes of Rule 804(a). C. Pena-Gutierrez argues that the district court’s evidentiary error in admitting Macias-Limon’s hearsay statement within Inspector Anderson’s hearsay report amounted to a violation of the Confrontation Clause of the Sixth Amendment. We need not decide this question, however, because even assuming a Confrontation Clause violation here, we find that the district court’s error was harmless beyond a reasonable doubt. See United States v. Bowman, 215 F.3d 951, 961 (9th Cir.2000) (noting that “[evidence erroneously admitted in violation of the Confrontation Clause must be shown harmless beyond a reasonable doubt”); United States v. Magana-Olvera, 917 F.2d 401, 409 (9th Cir.1990) (holding that for Confrontation Clause violations, “[Reversal is not required if ‘the error was harmless beyond a reasonable doubt.’ ” (quoting Toolate v. Borg, 828 F.2d 571, 575 (9th Cir.1987))). Whether a violation of the Confrontation Clause is harmless beyond a reasonable doubt “depends on a variety of factors, including whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting" }, { "docid": "9910967", "title": "", "text": "in this case, the same reasons that led us to find a lack of trustworthiness for purposes of Rule 804(b)(5) convince us that the statement lacks sufficient indicia of reliability to safeguard the appellant’s sixth amendment right of confrontation. D. Prejudice Although we have found that the district court abused its discretion in admitting the testimony under Rule 804(b)(5) and that the admission resulted in a violation of the appellant’s sixth amendment right of confrontation, this does not end our inquiry. We must also examine whether the erroneous admission requires a reversal of appellant’s conviction or whether it constituted harmless error. In Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), the Supreme Court stated that an error is harmless if the prosecution can “prove beyond a reasonable doubt that the constitutional error complained of did not contribute to the verdict obtained.” The Supreme Court has made clear that confrontation clause violations are subject to harmless error. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). In assessing harmless error in the context of confrontation clause violations, The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986) (citations omitted). In the instant case, we conclude that the error was harmless. In reaching this conclusion, we rely not on the fact that Gerald Lang’s testimony was duplicative or that it was corroborated by other evidence, but rather on the overall strength of the government’s case and the" }, { "docid": "14220794", "title": "", "text": "harmless beyond a reasonable doubt. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s ease, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. Delaware v. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438. Therefore, to determine whether the introduction of the statements of Hayes, Blue Dog, and Hedine was harmless beyond a reasonable doubt, we must examine the other evidence introduced at the trial to determine whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Yates v. Evatt, — U.S. -, 111 S.Ct. 1884, 1892, 114 L.Ed.2d 432 (1991) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)). The government failed to argue harmless error in its appellate brief. While the government may waive harmless error, an appellate court has discretion to overlook the waiver under certain circumstances. United States v. Giovannetti, 928 F.2d 225, 226-27 (7th Cir.1991). The factors considered by the Giovannetti court in determining whether an appellate court should undertake a harmless error analysis in situations where the government fails to raise it are: (1) the length and complexity of the record, (2) the certainty of the harmlessness finding, and (3) whether a reversal will result in protracted, costly and futile proceedings in district court. Id. at 227. In United States v. Pryce, 938 F.2d 1343, 1348 (D.C.Cir.1991), a divided panel concluded that an appellate court may undertake an unbriefed harmless error analysis when the “relevant portions of the record are reasonably short and straightforward.” The panel’s opinion, however, cautioned that when" }, { "docid": "6182897", "title": "", "text": "confrontation before the jury, stressed by the Sixth Amendment, was abundantly important. As best stated by Judge Wade H. McCree, Jr., Confrontation Clause considerations “are especially cogent when the testimony of a witness is critical to the prosecution’s case against the defendant.” United States v. Lynch, 499 F.2d 1011, 1022 (D.C.Cir.1974). There the District of Columbia Circuit held that the district court committed prejudicial error in admitting preliminary hearing testimony, noting that “although the dangers of hearsay are mitigated to some extent by the safeguards of the oath and the opportunity to cross-examine in the former tribunal, the prior testimony should be admitted only when the witness is in fact ‘unavailable.’ ” Lynch, 499 F.2d at 1022; see also United States v. Rothbart, 653 F.2d 462, 466 (10th Cir.1981) (trial court committed reversible error in admitting deposition where it was a substantial part of the Government’s case in chief and the Government failed to demonstrate a good faith effort); United States v. Mann, 590 F.2d 361, 367 (1st Cir.1978) (trial court committed reversible error in admitting a deposition of a witness who was “vital” to the Government's case; the “government did not make as vigorous an attempt to secure the presence of the witness as it would have made if it did not have the prior recorded testimony”). Because we cannot say that the admission of this testimony was harmless, we are obliged to reverse. III. Quinn argues on appeal that there was insufficient evidence to support his conviction and that the court further erred in denying his motion, made under Fed.R. Crim.P. 29, for a judgment of acquittal. Under Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1978), we must review “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.” Quinn essentially argues that if the trial court erred in the admission of the deposition testimony of Sharon Braxton, and it must therefore be disregarded, the remainder of the evidence was" }, { "docid": "22240018", "title": "", "text": "the affidavits” was to provide evidence at trial. Id. Relying upon Melendez-Diaz, OrozcoAcosta challenges the district court’s introduction into evidence of the CNR and the warrant of removal. He argues that both the CNR and the warrant of removal are testimonial and that, because he never had the opportunity to cross-examine their declarants, the introduction of these documents violated his right to confront witnesses against him. The government concedes that introduction of the CNR was error under Melendez-Diaz, but argues that the error was harmless beyond a reasonable doubt. The government also maintains that introduction of the warrant of removal into evidence did not violate the Confrontation Clause post -Melendez-Diaz. Certificate of Non-Existence of Record (CNR) To convict Orozco-Acosta of violating § 1326, the government was required to prove that Orozco-Acosta, after being removed, re-entered the United States without permission to reapply for admission. See 8 U.S.C. § 1326(a)(2)(A); United States v. Barraganr-Cepeda, 29 F.3d 1378, 1381 (9th Cir.1994). As part of its proof on this element, the government introduced the CNR, in which a District Director of the Citizenship and Immigration Services of the Department of Homeland Security certified that “after a diligent search [of two agency databases,] no record was found to exist indicating that [Orozco-Acosta] obtained consent ... for re-admission in the United States.” Because the government concedes that the introduction of the CNR violated Orozco-Acosta’s confrontation right, “we must remand for a new trial unless the government demonstrates beyond a reasonable doubt that admission of the evidence was harmless.” United States v. Norwood, 603 F.3d 1063, 1068 (9th Cir.2010). In evaluating whether a Confrontation Clause violation is harmless, we consider a variety of factors, including: the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of crossexamination otherwise permitted, and, of course, the overall strength of the prosecution’s case. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). We conclude that the government has met its" }, { "docid": "1431173", "title": "", "text": "jury instructions created certain presumptions which improperly shifted the burden of proof from the prosecution to the defendant. In analyzing the question whether this unconstitutional burden-shifting jury instruction was harmless, the Court employed a two-step approach. In essence, a reviewing court must first establish “what evidence the jury actually considered in reaching its verdict.” — U.S. at -, 111 S.Ct. at 1893. The purpose of this first step is to determine what evidence may have been considered as tending to prove the improperly presumed fact. The second step is to “weigh the probative force of that evidence [determined in the first step] as against the probative force of the presumption standing alone.” Id. The Court concluded that the proper test is “whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption.” Id. Petitioners argue that the methodology used in Yates should be “extrapolated” to the present harmless error analysis of this confrontation clause violation. They argue that Yates requires a reviewing court to first determine what evidence the jury considered on the issue of the death sentence. According to petitioners, the court must then determine if there are any differences in the pre- and post-hypnotic testimony of Vicki’ Lehman, and finally determine whether the verdict of death actually rested on the hypnotically enhanced testimony. We agree with petitioners that Yates is instructive of our analysis, but we do not agree that Yates changes the Van Arsdall analysis. In analyzing a violation of the confrontation clause for harmless error, the Court in Van Arsdall stated that: Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of corroborating or contradicting testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s ease.' 475 U.S. at 684, 106 S.Ct. at 1438. The fifth factor described in" }, { "docid": "14051011", "title": "", "text": "cross-examination, or denying the motion for a new trial based on Brady information, we affirm. . The Honorable Leonard T. Strand, Chief Judge, United- States District Court for the Northern District of Iowa. . At the time the district court ruled on Wright's motion for a new trial, the record suggested that none of this information was disclosed to the defense before trial. However, prior to oral argument in this appeal, the Government discovered that Gavin admitted in his grand jury testimony that he participated in a controlled buy two or three years earlier \"in an attempt to work off a, charge.” The Government has filed a motion to supplement the record with this information, which we grant. A transcript of this testimony had been disclosed to Wright before trial. However, this testimony did not reveal that the officer with whom Gavin previously cooperated was Officer Jernigan, and so we still proceed under the assumption that the impeachment evidence related to Gavin containéd favorable material that was suppressed. . Wright also appears to suggest that by failing to disclose the impeachment evidence, the Government -violated his Sixth Amendment right to confront the witnesses against him. However, the Confrontation Clause has never been recognized as an independent method of enforcing pretrial disclosure of impeachment information. See Pennsylvania v. Ritchie, 480 U.S, 39, 52, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (plurality opinion) (stating that the Confrontation Clause is not \"a constitutionally compelled rule of pretrial5 discovery”). Moreover, even if a Confrontation Clause violation did occur, we would find it harmless beyond a reasonable doubt for the same reasons we concluded that the impeachment evidence was not material under Brady. See U.S. v. Jones, 728 F.3d 763, 766 (8th Cir.2013) (holding that harmless-error inquiry regarding cross-examination depends on \"the importance of the witness'[s] testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case” (quotation omitted)). As such, we find" }, { "docid": "17518039", "title": "", "text": "an elaborate system to allow Medjuck to witness the depositions live by video feed and to participate with his attorneys by private telephone connection during the depositions taken in Canada. The proceedings were videotaped. Medjuck’s level of involvement was sufficient under Salim and Gifford, We conclude that the district court did not err in finding that the Government satisfied the requirements for the exception to Rule 15’s presence requirement. 2. Confrontation Clause The Supreme Court has recognized an exception to a defendant’s confrontation rights “where denial of such confrontation is necessary to further an important public policy and ... the reliability of the testimony is otherwise assured.” Maryland v. Craig, 497 U.S. 836, 850, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). More specifically, an exception has been recognized for admission of deposition testimony where a witness is unavailable to testify at trial; the Third Circuit has set forth a test for determining whether deposition testimony falls within that exception. See United States v. Kelly, 892 F.2d 255, 261 (3d Cir.1989). First, the deposition testimony must fall within “an established exception to the hearsay rule.” Id. Second, the deposition must be taken “in compliance with law.” Id. at 262. Finally, the defendant must have had an opportunity to cross-examine the deposed witnesses. Id. This court has held that before the “Confrontation Clause’s ‘preference for face-to-face confrontation’ ” may be avoided by resort to telephonic participation, the Government “must first attempt to secure the defendant’s actual, physical presence” at the deposition. Christian v. Rhode, 41 F.3d 461, 467 & n. 8 (9th Cir.1994) (emphasis in original). In Christian, the Arizona State government had “made no effort whatsoever” to secure the defendant’s presence at the depositions. Id. at 466. Without establishing a specific test for what the government must do to qualify for an exception to the Confrontation Clause, the court held “that the state must do something in its attempt to secure the defendant’s presence.” Id. at 467 (emphasis in original). We conclude that the Government satisfied Christian's requirement that it attempt to secure the defendant’s actual presence, by virtue of its" }, { "docid": "7180859", "title": "", "text": "typewritten document in which Salupisa testifies that he has gone to the birth records of the City of Bacolod, looked up the information on Napoleon Bustamante, and summarized that information at the request of the U.S. government for the purpose of its investigation into Bustamante’s citizenship. Rather than simply authenticating an existing non-testimonial record, Salupisa created a new record for the purpose of providing evidence against Bustamante. See id. at 2539. The admission of Exhibit 1 without an opportunity for cross examination therefore violated the Sixth Amendment. IV. The government argues that even if Bustamante’s confrontation rights were violated, the error was harmless. The government bears the burden of proving that a Confrontation Clause error is harmless beyond a reasonable doubt. United States v. Nguyen, 565 F.3d 668, 675 (9th Cir.2009). “In evaluating whether a Confrontation Clause violation is harmless, [this court] considers a variety of factors,” including: the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. United States v. Orozco-Acosta, 607 F.3d 1156, 1161-62 (9th Cir.2010) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). The government maintains that the strength of its other evidence regarding Bustamante’s citizenship renders the admission of Exhibit 1 harmless. The government points out that it also introduced marriage and school records indicating that Bustamante was born in the Philippines in 1939; the birth certificate of Bustamante’s daughter, which also indicated that her father had been born in the Philippines; and a visa application and entry document indicating that Bustamante entered the United States from the Philippines in 1970. The government also presented evidence of Bustamante’s previous conviction and deportation. We agree that this evidence was strong, but we cannot conclude that it made the admission of Exhibit 1 harmless beyond a reasonable doubt. It is clear that Exhibit 1 was very important to the prosecution’s case. Trial" }, { "docid": "1422764", "title": "", "text": "Court said, “There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” Pointer v. Texas, 380 U.S. 400,405 [85 S.Ct. 1065, 1068, 13 L.Ed.2d 923] (1965). See also Douglas v. Alabama, 380 U.S. 415 [85 S.Ct. 1074, 13 L.Ed.2d 934] (1965). While an exception to the confrontation requirement has traditionally been recognized where a witness is unavailable for trial but has given previous testimony wherein he was subject to cross-examination by the defendant, the exception applies only if “the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Barber, supra, at 725, 88 S.Ct. at 1322. As noted above, the government in the case before us not only failed to make a good-faith effort to obtain Mitchell’s presence at trial, but cleared existing obstacles to his journey outside the jurisdiction of the court by taking his deposition and releasing him from subpoena. Thus, Rothbart’s constitutional right to be confronted by the witnesses against him was violated. Having concluded that the taking of the deposition and its admission into evidence were improper, we must determine whether such error was prejudicial, or merely harmless. Since we have found constitutional error, we must be able to conclude that such error was harmless beyond a reasonable doubt before we can affirm. Chapman v. California, 386 U.S. 18, 20-24, 87 S.Ct. 824, 826-28, 17 L.Ed.2d 705, rehearing denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). After reviewing the record of trial, we conclude that the error is not harmless beyond a reasonable doubt. The deposition of Alan Mitchell was a substantial part of the government’s case in chief. The prosecutor relied heavily on the Mitchell deposition in resisting defendant’s motion for judgment of acquittal at the end of plaintiff’s evidence and the Magistrate relied upon the deposition in denying the motion. Although the government now contends that the element of" }, { "docid": "19090561", "title": "", "text": "of good faith may demand their effectuation.” Roberts, 448 U.S. at 74, 100 S.Ct. 2531. “Because of the importance our constitutional tradition attaches to a defendant’s right to confrontation, the ‘good faith effort’ requirement demands much more than a merely perfunctory effort by the government,” but “[t]he inevitable question of precisely how much effort is required on the part of the government to reach the level of a ‘good faith’ and ‘reasonable’ effort eludes absolute resolution applicable to all cases.” United States v. Allie, 978 F.2d 1401, 1406, 1408 (5th Cir.1992). The prosecution bears the burden of establishing that a witness is unavailable. Roberts, 448 U.S. at 74, 100 S.Ct. 2531. The measures taken by the government in this case do not constitute “good faith” or “reasonable” efforts to secure the physical presence of Garay-Ramirez at trial. The government failed to make any concrete arrangements with Ga-ray-Ramirez prior to his deportation, and it delayed attempting to contact him about making such arrangements until shortly before trial. Garay-Ramirez was not served with a subpoena or given any sort of written notice regarding the trial prior to being deported. He appears to have been only orally informed that his testimony would be required if the case went to trial. Cf. United States v. Calderon-Lopez, 268 Fed.Appx. 279, 289 (5th Cir.2008) (finding that a government special agent made a good faith effort to secure the presence of four witnesses at trial sufficient to satisfy the Confrontation Clause by: (1) issuing subpoenas and letters to each witness translated into Spanish indicating the trial date and that the witness might be required to testify at trial prior to the witnesses’ deportation; (2) providing explicit instructions in the letters for obtaining the necessary documents to enter the United States and providing each witness with the travel distance to the local American Embassy from his respective place of residence, along with the addresses and telephone numbers for the Embassies; (3) informing each witness that the government would pay for the trip and reimburse the witness for any other incidental travel needed for the purpose of testifying; (4)" }, { "docid": "19090571", "title": "", "text": "the fact that Garay-Ramirez was not legally permitted to enter the United States, there is a reasonable possibility that it might have contributed to Tirado-Tirado’s conviction. See Alvarado-Valdez, 521 F.3d at 341 (finding that admission of testimony was not harmless error because of “the government’s insistent reliance on the testimony in its closing argument”). As a result, the introduction of GarayRamirez’s testimony was not harmless error. The judgment is VACATED, and this matter is REMANDED for new trial. . This court has rejected the argument that the procedures established in § 1324(d) are unconstitutional, but has stated that the statute does not eliminate the requirement that the government establish the unavailability of a witness before the witness's deposition testimony can be admitted at trial. See United States v. Aguilar-Tamayo, 300 F.3d 562, 565 (5th Cir.2002), cited by United States v. Calderon-Lopez, 268 Fed.Appx. 279, 288-89 (5th Cir.2008). . Tirado-Tirado appears to challenge the admission of the videotaped deposition solely on constitutional grounds, not on any independent admissibility requirement imposed by statute or the Federal Rules of Evidence. . Crawford did not change the definition of \"unavailability” for Confrontation Clause purposes; pre-Crawford cases on this point remain good law. . This Court treats the Confrontation Clause unavailability inquiry as identical to the unavailability inquiry under Rule 804(a)(5) of the Federal Rules of Evidence, which defines a witness as being unavailable when he is \"absent from the hearing and the proponent of [his] statement has been unable to procure [his] presence by process or other reasonable means.” See Calderon-Lopez, 268 Fed.Appx. at 288; Aguilar-Tamayo, 300 F.3d at 565 (“Unavailability must ordinarily also be established to satisfy the requirements of the Confrontation Clause.”). . The record does not show that the government deliberately sought to make Garay-Ramirez unavailable for trial. However, \"good faith” in the Confrontation Clause context is an objective standard that looks to the reasonableness of the government’s efforts to secure the witness, not the subjective intent of the responsible government officials. Thus, showing that the government acted in good faith from a subjective perspective is necessary, but not sufficient, to" }, { "docid": "1708575", "title": "", "text": "doubt, the interest in fairness has been satisfied and the judgment should be affirmed.” Id. at-, 106 S.Ct. at 3106-3107. The harmless-error doctrine reflects “the central purpose of a criminal trial ... to decide the factual question of the defendant’s guilt or innocence, and ... focus[es] on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” Delaware v. Van Arsdall, 475 U.S. 673, -, 106 S.Ct. 1431, 1436-1437, 89 L.Ed.2d 674 (1986) (citation omitted). Thus, “an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Id. In Van Arsdall, a Delaware trial court refused to allow defense counsel to cross-examine a prosecution witness about his agreement to testify in exchange for dismissal of an unrelated criminal charge. Id. at-, 106 S.Ct. at 1433-1434. In finding the trial court’s error to be harmless, the Court reasoned: “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Id. at-, 106 S.Ct. at 1438. The instant case is similar to Van Arsdall, except that here the prosecution, not the court, hindered disclosure of a witness’s deal with the prosecution. Reviewing the record in light of-the factors suggested in Van Arsdall, we hold that the error at issue was harmless. We note initially that the question is not whether the verdict might have been different without any of Reddick’s testimony, but whether the verdict might have been different if Reddick’s testimony were further" }, { "docid": "22173428", "title": "", "text": "jury would have had little reason to infer from that information that [the first witness’] cooperation with the government might have meant the difference between more than eight years in prison, on the one hand, and the modest sentence he in fact received, on the other. The limited nature of [the witness’] acknowledgment that he had benefited from his cooperation makes that acknowledgment insufficient for a jury to appreciate the strength of his incentive to provide testimony that was satisfactory to the prosecution. Id. Thus, as the court reasoned, although the jury was aware of the witnesses’ incentives to lie, they were not aware of the magnitude of those incentives, which would likely have affected the jury’s assessment of their testimony. Applying that reasoning here, any reduction from a mandatory life sentence is of such a significant magnitude that excluding this information denied the jury important information necessary to evaluate Lamere’s credibility. Taking the above factors into account, we conclude that the district court abused its discretion, violating Defendants’ Sixth Amendment constitutional right to effective cross-examination when it prevented defense counsel from exploring the mandatory life sentence that Lamere faced in the absence of a motion by the Government. B. Harmless Error Analysis Having determined that Defendants’ Confrontation Clause rights were violated, we next determine whether the error was harmless beyond a reasonable doubt. Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431 (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. Id.; see also Schoneberg, 396 F.3d at 1044 (citing and applying Van Arsdall factors). With respect to Laverdure, we conclude that the Confrontation Clause error was harmless beyond a" }, { "docid": "19090564", "title": "", "text": "notice only apprised Garay-Ramirez of the prospect that he would be required to return to testify in relatively vague and uncertain terms. See United States v. Guadian-Salazar, 824 F.2d 344, 346-47 (5th Cir.1987) (stating that instructions to witnesses that in the event their testimony was needed, the government would “make provisions for you to legally enter the United States and to remain until the case is terminated,” were ambiguous and contributed to “virtually assuring] the witnesses’ absence”). The government did not make any effort to contact to Garay-Ramirez to make concrete arrangements for his attendance at trial until more than five months after his deposition was taken, more than two months after the district court set the trial date, and only eight days before trial. This lack of vigilance on the part of the government is similar to that in GuadianSalazar, in which the government made no effort to contact the witnesses in the intervening month before trial and conceded that it had not made a good faith effort to procure the availability of deported witnesses for trial. 824 F.2d at 346. By contrast, in Allie and Calderon-Lopez, in which we found that the government took reasonable measures to secure the presence of deported witnesses, the government made efforts to remain in contact with the witnesses following their deportation. The government’s failure to keep Garay-Ramirez in the United States does not, as Tirado-Tirado asserts, per se demonstrate a lack of good faith by the government. Allie, 978 F.2d at 1407-08. Although “the government’s good faith efforts to assure [a witness’s] availability at trial should include efforts aimed at keeping the witness[] in the United States,” as keeping a witness in the United States is often probably the best way to ensure that the witness will be present for trial, deporting a witness may still be consis tent with “good faith” and “reasonable” efforts to procure the witnesses’ availability at trial. Id. However, in this case, the government’s actions do not meet that standard. The problem is not that officer Rosado failed to make a diligent effort to find Garay-Ramirez once" } ]

[ { "docid": "23554852", "title": "", "text": "Opinion of the Court COX, Judge: On March 1, 1991, appellant was tried by special court-martial before a military judge alone. Contrary to his plea, he was convicted of one specification of unauthorized absence from February 21, 1972, to April 19, 1990, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. Pursuant to his pleas, he was convicted of two additional specifications of unauthorized absence: one from May 10 to 20, 1990, and the other from May 22, 1990, until January 11, 1991, which was terminated by apprehension. Appellant was sentenced to a bad-conduct discharge, confinement for 140 days, and forfeiture of $300 pay per month for 4 months. The convening authority approved the sentence. The Court of Military Review set aside the finding of guilty to the 18-year unauthorized absence, affirmed the findings as to the other two specifications of unauthorized absence, then reassessed and affirmed the sentence in an unpublished opinion dated January 31, 1992. We granted review of the following issue: WHETHER THE COURT OF MILITARY REVIEW’S REASSESSMENT OF THE SENTENCE VIOLATED THIS COURT’S MANDATE IN UNITED STATES v. PEOPLES, 29 MJ 426 (CMA 1990). Before the Court of Military Review, appellant raised the issue of ineffective assistance of counsel based on trial defense counsel’s failure to introduce any evidence on the contested offense alleging unauthorized absence from February 21, 1972, until April 19, 1990. The piece of evidence appellant asserts should have been presented was a copy of a message from the Navy Recruiting District in Columbus, Ohio, dated July 16, 1972, indicating someone identified as appellant was apprehended by civilian authorities and released to military authorities on July 6, 1972, and that the person in custody denied being in any branch of the military. There was conflicting evidence as to whether the message was available to trial defense counsel before trial. Rather than ordering a hearing pursuant to United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), to determine the issue of ineffectiveness of counsel, the Court of Military Review, “[i]n the interest of judicial efficiency and economy,”" } ]

[ { "docid": "15879188", "title": "", "text": "after finding appellant guilty of all the charges against him, the military judge treated the assaults as multiplicious for sentencing with the violations of the Fort Dix regulation, which prohibited various contacts with trainees. The sentence adjudged was a bad-conduct discharge, 6 months’ confinement, partial forfeiture of pay, and reduction to Private E-l. Upon review of the case, the Court of Military Review reduced one of the indecent assaults to assault consummated by a battery, in violation of Article 128, UCMJ, 10 U.S.C. § 928; but upon reassessment, it affirmed the original sentence. Having considered this case in light of the analysis in United States v. Baker, 14 M.J. 361 (C.M.A.1983), we are convinced that appellant should not be convicted simultaneously of a simple or indecent assault, and of violating a general regulation by committing tuat same assault. Therefore, the findings of guilty on the two specifications under Charge III should be set aside and that charge dismissed. However, since the judge treated Charge III as multiplicious with the assault offenses for purposes of sentencing, we are convinced that appellant was not prejudiced as to the sentence adjudged. Accordingly, the decision of the United States Army Court of Military Review is reversed as to Charge III and its specifications; the findings of guilty thereof are set aside and Charge III is dismissed. The decision as to the remaining findings and the sentence is affirmed. Judge FLETCHER concurs. . Also, appellant contended unsuccessfully that the two assaults — although separated by a brief interval — should be viewed as only one offense. COOK, Judge (concurring in part): I reach the same ultimate result as my Brothers through a considerably different process. See my dissenting opinion in United States v. Baker, 14 M.J. 361 (C.M.A. 1983). Appellant was charged, inter alia, with two violations of Fort Dix Regulation 600-2, “Personnel — General: Treatment and/or Handling of Trainees and Receptees,” dated January 81, 1979, as changed by Change 1, dated May 8, 1979. This regulation prescribes a broad range of conduct between “permanent party” personnel and “trainees” or “receptees.” The regulation provides rules" }, { "docid": "13527800", "title": "", "text": "are consolidated into a single offense under Article 134, UCMJ, as quoted above, and the guilty finding to the consolidated specification is affirmed. The findings of guilty as to Specifications 1 and 3 of Charge III, are set aside and those specifications are ordered dismissed. The remaining findings are affirmed. On reassessment, and applying the principles of United States v. Cook, 48 M.J. 434, 437-38 (1998), United States v. Peoples, 29 M.J. 426, 427-29 (C.M.A.1990), and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A.1986), we affirm only so much of the sentence as includes a dishonorable discharge, confinement for seven years, forfeiture of all pay and allowances, and reduction to pay grade E-1. Senior Judges DORMAN, LEO, and TROIDL and Judges ANDERSON, ROLPH and NAUGLE concur. . Appellate counsel have briefed and orally argued this case with great skill. We commend both of them for superbly representing their respective positions. . I. CHARGE I, CONSPIRACY TO WRONGFULLY DISPOSE OF MILITARY PROPERTY OF THE UNITED STATES, AND CHARGE IV, SPECIFICATION 1, UNLAWFUL RECEIPT OF STOLEN EXPLOSIVE MATERIAL IN VIOLATION OF 18 U.S.C. § 842(h), CONSTITUTE AN UNREASONABLE MULTIPLICATION OF CHARGES. II. CHARGE II, WRONGFUL DISPOSITION OF MILITARY PROPERTY OF THE UNITED STATES, AND CHARGE IV, SPECIFICATION 2, UNLAWFUL POSSESSION', STORAGE, TRANSPORTATION, AND/OR SALE OF STOLEN EXPLOSIVE MATERIAL IN VIOLATION OF 18 U.S.C. § 842(h), CONSTITUTE AN UNREASONABLE MULTIPLICATION OF CHARGES. III. THE CHARGE III, SPECIFICATION 1, POSSESSION OF 20 MARIJUANA SEEDS, AND SPECIFICATION 3, POSSESSION OF 7 MARIJUANA PLANTS, ARE MULTI-PLICIOUS WITH SPECIFICATION 2, MANUFACTURE OF MARIJUANA. IV. THE 3 SPECIFICATIONS OF CHARGE III, POSSESSION OF 20 MARIJUANA SEEDS, MANUFACTURE OF MARIJUANA, AND POSSESSION OF 7 MARIJUANA PLANTS CONSTITUTE AN UNREASONABLE MULTIPLICATION OF CHARGES. V. THE MILITARY JUDGE ERRED IN ACCEPTING PRIVATE FIRST CLASS QUIROZ’S PLEAS OF GUILTY TO CHARGE IV, SPECIFICATIONS 1 AND 2, WHERE 18 U.S.C. § 842(h) IS NOT APPLICABLE AS A MATTER OF LAW UNDER THE FACTS OF THIS CASE. VI. THE SENTENCE TO CONFINEMENT OF 10 YEARS AND A DISHONORABLE DISCHARGE SHOULD NOT BE APPROVED IN THIS CASE. . VII. APPELLANT’S PLEAS OF GUILTY TO" }, { "docid": "16188544", "title": "", "text": "MAY, Judge: Appellant was convicted, contrary to his pleas, by special court-martial with officer members of fraternization with, and indecent assault upon, a female seaman recruit in violation of Articles 92 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 934. He was sentenced to a bad-conduct discharge from the naval service and reduction to pay grade E-l. Appellant assigns the following errors: I THE SECOND PROSECUTION OF APPELLANT FOLLOWING A DECLARATION OF MISTRIAL AT THE FIRST TRIAL ON GROUNDS OF FLAGRANT, UNPROFESSIONAL AND UNETHICAL ARGUMENT BY THE PROSECUTOR WAS BARRED BY THE FIFTH AMENDMENT DOUBLE JEOPARDY CLAUSE. II THE TRIAL COUNSEL WAS DISQUALIFIED TO ACT AS PROSECUTOR IN THE SECOND TRIAL AS THE MILITARY JUDGE DECLARED A MISTRIAL ON GROUNDS OF IMPROPER ARGUMENT AND PROSECUTORIAL MISCONDUCT AT THE FIRST TRIAL. Ill CHARGE II, SPECIFICATION 1, FAILED TO STATE AN OFFENSE OF ARTICLE 134, INDECENT ASSAULT, AS THE CHARGE DID NOT ALLEGE THAT THE ACT OF SEXUAL INTERCOURSE WAS AGAINST THE CONSENT OF THE COMPLAINING WITNESS. IV THE ARGUMENT OF TRIAL COUNSEL WAS PREJUDICIAL TO THE SUBSTANTIAL RIGHTS OF THE ACCUSED. V THE TESTIMONY OF SEAMAN RECRUIT [M] AGAINST AEC GOODYEAR WAS INSUFFICIENT TO SUSTAIN CONVICTIONS FOR INDECENT ASSAULT AND FRATERNIZATION BY EVIDENCE BEYOND A REASONABLE DOUBT. VI THE AWARD OF A BAD-CONDUCT DISCHARGE AND REDUCTION TO E-l WAS INAPPROPRIATELY SEVERE UNDER THE CIRCUMSTANCES OF THIS CASE. VII THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS CIVILIAN ATTORNEY, WHO HAD REPRESENTED HIM IN THE FIRST TRIAL AND OBTAINED A MISTRIAL UPON TIMELY OBJECTION TO IMPROPER TRIAL COUNSEL ARGUMENT, FAILED TO OBJECT TO SIMILAR ARGUMENT BY THE SAME TRIAL COUNSEL IN THE SECOND TRIAL INVOLVING THE SAME ACCUSED. UNITED STATES V. RIVAS, 3 M.J. 282 (C.M.A.1982). SEE ASSIGNMENTS OF ERROR I, II, III. We find no merit in assignments I, II, III and VII. Our agreement with assignments IV and V make addressal of assignment VI unnecessary. We also believe some comment is warranted regarding assignment I. I Appellant’s first trial on these offenses was terminated following a declaration of mistrial by the military judge. The" }, { "docid": "13527799", "title": "", "text": "defense consist of a statement by the appellant at trial that another Marine had asked him to sell the C-4 to him, and additional matters the appellant has filed with this Court. Having examined the record, we find no substantial basis in law and fact to question these guilty pleas. Prater, 32 M.J. at 436. Additionally, we will not overturn a guilty plea based on the mere possibility of a defense, and we will not speculate as to the existence of facts that might invalidate the appellant’s guilty pleas. United States v. Faircloth, 45 M.J. 172, 174 (1996); United States v. Johnson, 42 M.J. 433, 445 (1995); United States v. Harrison, 26 M.J. 474, 476 (C.M.A.1988). As for the final issue, the appropriateness of the appellant’s sentence, we find it, as reassessed, entirely appropriate in view of the severity of the offenses and his record. United States v. Healy, 26 M.J. 394 (C.M.A. 1988); United States v. Snelling, 14 M.J. 267 (C.M.A.1982). Conclusion Accordingly, Charge II and its Specification and Specification 2 of Charge IV are consolidated into a single offense under Article 134, UCMJ, as quoted above, and the guilty finding to the consolidated specification is affirmed. The findings of guilty as to Specifications 1 and 3 of Charge III, are set aside and those specifications are ordered dismissed. The remaining findings are affirmed. On reassessment, and applying the principles of United States v. Cook, 48 M.J. 434, 437-38 (1998), United States v. Peoples, 29 M.J. 426, 427-29 (C.M.A.1990), and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A.1986), we affirm only so much of the sentence as includes a dishonorable discharge, confinement for seven years, forfeiture of all pay and allowances, and reduction to pay grade E-1. Senior Judges DORMAN, LEO, and TROIDL and Judges ANDERSON, ROLPH and NAUGLE concur. . Appellate counsel have briefed and orally argued this case with great skill. We commend both of them for superbly representing their respective positions. . I. CHARGE I, CONSPIRACY TO WRONGFULLY DISPOSE OF MILITARY PROPERTY OF THE UNITED STATES, AND CHARGE IV, SPECIFICATION 1, UNLAWFUL RECEIPT OF STOLEN" }, { "docid": "15275476", "title": "", "text": "These specifications under Article 134, UCMJ, alleged violations of Section 842(h) of Title 18, U.S. Code, by first receiving stolen C-4 and by then possessing, storing, transporting and/or selling C-4. The basis of appellant’s argument is that 18 U.S.C. § 842(h) does not apply to him because the statute contains an exception for military explosives. We disagree with the appellant’s argument. The military exception in the statute allows the possession, storage, and transport of explosives by the military so the military can distribute and handle such materials as military needs dictate. We believe the exception applies to the military as an organization and to explosives used for legitimate military purposes. It does not apply to protect individual military- members who unlawfully receive, possess, transport, and sell such dangerous material. We therefore find no substantial basis in law and fact for questioning the appellant’s pleas to these of fenses. United States v. Prater, 32 M.J. 433 (C.M.A.1991). Sentence Appropriateness Lastly, the appellant challenges the appropriateness of his sentence. Having considered the entire record, we find his sentence, as reassessed, to be appropriate in view of the severity of his offenses, particularly in receiving and selling stolen military explosives, growing marijuana plants, and his prior record. United States v. Healy, 26 M.J. 394 (C.M.A.1988); United States v. Snelling, 14 M.J. 267 (C.M.A.1982). Disposition Accordingly, the findings of guilty to Charge II and its specification and specification 3 of Charge III are set aside and are ordered dismissed. We affirm the remaining findings. We have reassessed the sentence under the principles contained in United States v. Cook, 48 M.J. 434, 437-38 (1998), United States v. Peoples, 29 M.J. 426, 427-29 (C.M.A.1990), and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A.1986). We affirm only so much of the sentence as includes a dishonorable discharge, confinement for eight years, forfeiture of all pay and allowances, and reduction to pay grade E-l. Senior Judge TROIDL and Judge ANDERSON concur. . See Rule for Courts-Martial 307(c)(4), Manual for Courts-Martial, United States (1998 ed.), Discussion. . United. States v. Evans, 28 M.J. 74, 76 (C.M.A.1989)(service courts may" }, { "docid": "17159216", "title": "", "text": "Government followed existing regulations, and R.C.M. 305(k) only provides remedies for violations of four cited subsections of R.C.M. 305(k). However, the Government agrees that if we conclude some type of credit is required for a violation of the holding in McLaughlin, then day-for-day administrative credit, similar to the formula offered by R.C.M. 305(k), is appropriate, and, since appellant has already served his adjudged confinement, a corresponding reduction in forfeitures should be awarded. Brief for the Government at 18. We specifically find that the bad-conduct discharge adjudged was appropriate. However, we conclude that appellant should receive some relief from this Court based upon the Government’s failure to afford him a prompt probable cause determination after he was confined on 1 August 1991. In our opinion, a day-for-day credit, based on the formula offered by R.C.M. 305(k), is appropriate. Since appellant has served his adjudged confinement, we reassess the sentence on the basis of the error noted, the entire record, and United, States v. Sales, 22 M.J. 305 (G.M.A. 1986), and affirm only so much of the sentence as stated below (n.b., our decretal paragraph directs an appropriate reduction in forfeitures intended to reduce the appellant’s forfeitures by the equivalent of approximately three days of base pay due a service member in pay grade E-2). See United States v. Strickland, 36 M.J. 569, 571 (A.C.M.R.1992), and United States v. Keith, 36 M.J. 518, 519 (A.C.M.R.1992), and cases cited therein. Except as noted above, we conclude that the findings and sentence are correct in law and fact and that no error prejudicial to the substantial rights of the appellant was committed. Accordingly, we reassess the sentence and affirm the findings and only so much of the sentence as extends to confinement for four months, reduction to pay grade E-l, a bad-conduct discharge, and forfeiture of $475 pay per month for four months. Senior Judges FREYER and STRICKLAND and Judge MOLLISON, concur. . The appellant was tried by special court-martial on 15 October 1991. Based on pleas of guilty, he was convicted of three violations of Article 86, Uniform Code of Military Justice (UCMJ)" }, { "docid": "15879187", "title": "", "text": "Opinion of the Court EVERETT, Chief Judge: Two separate, but identical, specifications alleged that on February 16,1980, appellant committed an indecent assault on Private E-l Julie K. Cummings “by grabbing her, kissing her, and fondling her breasts and crotch, all with intent to gratify his sexual desires,” in violation of Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934. He also was charged in two identical specifications with having violated Article 92, UCMJ, 10 U.S.C. § 892, on February 16,1980, “by touching, kissing and caressing the person and body of Private E-l Julie K. Cummings, a female trainee,” contrary to a lawful general regulation at Fort Dix, New Jersey. At his trial on these and other charges before a military judge sitting as a special court-martial, appellant filed a motion for appropriate relief, in which he contended that the assault charges were multiplicious with those involving violations of the Fort Dix regulation and that findings of guilty should not be entered on both sets of charges. This motion was denied, but after finding appellant guilty of all the charges against him, the military judge treated the assaults as multiplicious for sentencing with the violations of the Fort Dix regulation, which prohibited various contacts with trainees. The sentence adjudged was a bad-conduct discharge, 6 months’ confinement, partial forfeiture of pay, and reduction to Private E-l. Upon review of the case, the Court of Military Review reduced one of the indecent assaults to assault consummated by a battery, in violation of Article 128, UCMJ, 10 U.S.C. § 928; but upon reassessment, it affirmed the original sentence. Having considered this case in light of the analysis in United States v. Baker, 14 M.J. 361 (C.M.A.1983), we are convinced that appellant should not be convicted simultaneously of a simple or indecent assault, and of violating a general regulation by committing tuat same assault. Therefore, the findings of guilty on the two specifications under Charge III should be set aside and that charge dismissed. However, since the judge treated Charge III as multiplicious with the assault offenses for purposes of sentencing," }, { "docid": "7463314", "title": "", "text": "OPINION OF THE COURT HAESSIG, Judge: A military judge sitting as a general court-martial convicted the appellant, consistent with his pleas, of two specifications of absence without leave in violation of Article 86, Uniform Code of Military Jus tice 10 U.S.C. § 886 (1982) [hereinafter UCMJ]. The appellant’s approved sentence includes a bad-conduct discharge, confinement for six months, forfeiture of $500.00 pay per month for six months, and reduction to the lowest enlisted grade. The appellant asserts, inter alia, that he was subjected to unlawful pretrial punishment in violation of Article 13, UCMJ, 10 U.S.C. § 813, and that as a result he is entitled to meaningful sentence relief. We agree. The record of trial reflects that prior to trial, and as a result of his absences without leave, the appellant was, inter alia, subjected to public denunciation and military degradation by being called to the front of a unit formation by the unit first sergeant and sarcastically referred to by the first sergeant as “my favorite AWOL case.” The government did not rebut the allegation. The United States Court of Military Appeals and this Court have unequivocally condemned conduct by those in positions of authority which result in needless military degradation, or public denunciation or humiliation of an accused. United States v. Cruz, 25 M.J. 326 (C.M.A.1987); United States v. Villamil-Perez, 32 M.J. 341 (C.M.A.1991); United States v. Fitzsimmons, 33 M.J. 710 (A.C.M.R.1991); United States v. Hatchett, 33 M.J. 839 (A.C.M.R.1991). We do so again here and will provide the appellant with meaningful relief in our decretal paragraph. In light of the relief we will grant to the appellant we need not address his other assignment of error. The findings of guilty are affirmed. Using our authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to reassess the sentence, based on the error noted, the entire record, and United States v. Sales, 22 M.J. 305 (C.M.A.1986), the Court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement for six months, and reduction to the grade of Private El. Senior Judge De GIULIO concurs. ." }, { "docid": "13756606", "title": "", "text": "Judge RYAN delivered the opinion of the Court. A military judge, sitting as a general court-martial, convicted Appellant, pursuant to his pleas, of one specification of sodomy with a child under age twelve, one specification of indecent acts with a child, and eight specifications of indecent acts with another, violations of Articles 125 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 925, 934 (2006). A panel of members sentenced Appellant to a dishonorable discharge, confinement for a period of twenty-five years, and forfeiture of all pay and allowances. In accordance with Appellant’s pretrial agreement, the convening authority agreed to suspend confinement in excess of twenty years for the period of confinement served plus twelve months. Addressing an unrelated issue on appeal, the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) set aside the findings of guilty and dismissed Specifications 6, 7, and 8 of Charge III as legally insufficient. United States v. Ballan, No. NMCCA 201000242, slip op. at 3, 5 (N.M.Ct.Crim.App. Jan. 27, 2011). The NMCCA reassessed Appellant’s sentence, but found that the members would have nevertheless imposed the same sentence. Id. at 4. Consistent with our decision in United States v. Wilkins, 29 M.J. 421 (C.M.A 1990), we hold that action by the convening authority showing an intent to refer a particular charge to trial is sufficient to satisfy the jurisdictional requirements of the Rules for Courts-Martial (R.C.M.). Further, we hold that while it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication, in the context of a guilty plea, where the error is alleged for the first time on appeal, whether there is a remedy for the error will depend on whether the error has prejudiced the substantial rights of the accused. See Article 59, UCMJ, 10 U.S.C. § 859 (2006). I. FACTUAL BACKGROUND The Naval Criminal Investigative Service (NCIS) began investigating Appellant in 2008 when his three biological children — all living separately in foster homes at the time — were observed exhibiting age-inappropriate sexual behavior. Pursuant to this investigation, NCIS interviewed Appellant" }, { "docid": "12104704", "title": "", "text": "law, including specific punitive articles of the UCMJ, and that an applicable offense for the misconduct committed is not defined therein. 36 M.J. at 887. Disposition. Only so much of the finding of guilty of Specification 1 of Charge III as finds the appellant guilty of an attempted escape from custody in violation of Article 80, UCMJ, 10 U.S.C. § 880, is affirmed. The remaining findings of guilty are affirmed. The sentence has been reassessed in accordance with the principles of United States v. Peoples, 29 M.J. 426 (C.M.A.1990), and United States v. Sales, 22 M.J. 305 (C.M.A.1986), and upon such reassessment, the sentence as approved on review below is also affirmed. Senior Judge JONES concurs. . The appellant was found guilty of disrespect to NCOs, failure to obey a lawful order not to consume alcoholic beverages while under the age of 21 in the State of Hawaii, escape from custody, making a false official statement, drunk driving, assault and battery, wrongfully possessing opened containers of alcohol in a motor vehicle, drunk and disorderly, and wrongfully communicating a threat, in violation of Articles 91, 92, 95, 107, 128, and 134, UCMJ, 10 U.S.C. §§ 891, 892, 895, 907, 928, 934. . I. THE MILITARY JUDGE ERRED BY FAILING TO FIND CHARGE VII, SPECIFICATION 2, DRUNK AND DISORDERLY CONDUCT MULTIPLICIOUS FOR FINDINGS WITH THE REMAINING OFFENSES, SINCE THE REMAINING OFFENSES WERE THE BASIS FOR THE DRUNK AND DISORDERLY CONDUCT. (CITATIONS OMITTED.) II. CHARGE VII, SPECIFICATION 1, WRONGFULLY POSSESSING AN OPEN CONTAINER OF ALCOHOL IN A MOTOR VEHICLE WAS MULTIPLICIOUS FOR FINDINGS WITH THE OFFENSE OF DRIVING WHILE DRUNK SINCE THEY BOTH AROSE FROM THE SAME TRANSACTION, AND BOTH OFFENSES WERE DESIGNED TO PROTECT THE SAME SOCIETAL NORM OF PREVENTING PERSONS FROM DRINKING WHILE DRIVING. (CITATION OMITTED.) III. CHARGE II, FAILURE TO OBEY A LAWFUL ORDER BY DRINKING UNDER THE LEGAL AGE WAS MULTIPLICIOUS FOR FINDINGS WITH THE OFFENSES OF DRUNK AND DISORDERLY CONDUCT, DRIVING WHILE DRUNK AND POSSESSING AN OPEN CONTAINER OF ALCOHOL IN A MOTOR VEHICLE. (CITATION OMITTED.) IV. THE COURT-MARTIAL LACKED JURISDICTION BECAUSE THE MILITARY JUDGE WAS NOT APPOINTED" }, { "docid": "15275477", "title": "", "text": "sentence, as reassessed, to be appropriate in view of the severity of his offenses, particularly in receiving and selling stolen military explosives, growing marijuana plants, and his prior record. United States v. Healy, 26 M.J. 394 (C.M.A.1988); United States v. Snelling, 14 M.J. 267 (C.M.A.1982). Disposition Accordingly, the findings of guilty to Charge II and its specification and specification 3 of Charge III are set aside and are ordered dismissed. We affirm the remaining findings. We have reassessed the sentence under the principles contained in United States v. Cook, 48 M.J. 434, 437-38 (1998), United States v. Peoples, 29 M.J. 426, 427-29 (C.M.A.1990), and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A.1986). We affirm only so much of the sentence as includes a dishonorable discharge, confinement for eight years, forfeiture of all pay and allowances, and reduction to pay grade E-l. Senior Judge TROIDL and Judge ANDERSON concur. . See Rule for Courts-Martial 307(c)(4), Manual for Courts-Martial, United States (1998 ed.), Discussion. . United. States v. Evans, 28 M.J. 74, 76 (C.M.A.1989)(service courts may refuse to apply waiver rule in exercising their unique functions under Art. 66, UCMJ). . We also find there was no misuse of the conspiracy charge. See United States v. Crocker, 18 M.J. 33, 40 (C.M.A.1984)." }, { "docid": "12098630", "title": "", "text": "and statements were not submitted because appellant, by his own admission, had not originally intended to do so. However, after he received his copy of the record of trial subsequent to the lapse of the time period for submission of clemency matters, he changed his mind. We decline to find the trial defense counsel at fault for this omission. Moreover, after examining the substance of the statements, we are satisfied that the appellant was not prejudiced by the convening authority not having seen them. See United States v. Dumas, 36 M.J. 941 (A.C.M.R.1993). We have considered the other errors assigned by the appellant including those raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), and find them to be without merit. The findings of guilty of Charges I and II and their Specifications are set aside and Charges I and II and their Specifications are dismissed. The remaining findings of guilty are affirmed. Reassessing the sentence on the basis of the error noted above and the entire record, the court affirms only so much of the sentence as provides for confinement for six months, forfeiture of all pay and allowances for six months, and reduction to Private El. Judge LANE and Judge RUSSELL concur. . On 26 September 1992, the appellant was convicted, contrary to his pleas, by a general court-martial composed of officer and enlisted members, of involuntary manslaughter, assault with a dangerous weapon (two specifications), and wrongfully carrying a concealed weapon in violation of Articles 118, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 918, 928, and 934 (1988) [hereinafter UCMJ]. He was sentenced to confinement for twenty-four months, forfeiture of all pay and allowances, and reduction to Private El. On 19 January 1993, the convening authority approved the sentence. On 5 August 1993, the incarcerating authority suspended the unexecuted confinement for ten months and, on 23 August 1993, remitted the unexecuted forfeitures effective 5 August 1993. . The three gestures mentioned in the record included the familiar use of the middle finger, crossing the throat with the index finger, and pointing the" }, { "docid": "17125476", "title": "", "text": "59(a), UCMJ; see United States v. Soriano, 20 M.J. 337 (C.M.A.1985). IX We have considered appellant’s remaining assignments of error and find them to be without merit. United States v. Forbes, 19 M.J. 953 (A.F.C.M.R.1985); Mil.R.Evid. 304(g); Mil.R.Evid. 103; United States v. Graf, 35 M.J. 450 (C.M.A.1992). X In view of our conclusion in Part V, above, normally we would amend the specification to conform with our findings. However, appellant was convicted of an existing charge of indecent acts covering the same time period (the Additional Charge and its specification). Therefore, should we find indecent acts an included offense of Charge II, they would merge with the indecent acts of the Additional Charge. To avoid multiplicity and to conform the charges and specifications to our review and findings, we hereby amend the specification of the Additional Charge to read In that ..., did, ... on divers occasions between about 1 Nov 87 and about 1 Apr 90, wrongfully commit indecent acts with T by presenting himself totally naked, exposing his genitals, and masturbating in her presence, and by performing oral sex upon her body. Charge II and its specification are hereby dismissed. For clarification: we are convinced beyond a reasonable doubt of appellant’s guilt of Charge I and its specification, Charge III and its specifications, and the Additional Charge and its specification, as amended. We are not convinced beyond a reasonable doubt of appellant’s guilt of Charge II and its specification. Reassessing the sentence based on our findings, we find appropriate, only so much of the sentence as provides for a dishonorable discharge, confinement for 14 years, and reduction to E-3. XI. DECRETAL The findings and sentence, as modified, are correct in law and fact. Article 66(c). Accordingly, they are hereby, AFFIRMED. Senior Judge O’HAIR and Judge GRUNICK concur. . In violation of Articles 121, 125, and 134, Uniform Code of Military Justice (UCMJ) (10 U.S.C. §§ 921, 925, and 934). Because the victim was over 16 years old at the time of the last offense, it was alleged in a separate specification as an indecent act with another. ," }, { "docid": "15191874", "title": "", "text": "ROLPH, Judge: A military judge, sitting alone as a general court-martial, convicted the appellant, in accordance with his voluntary pleas of guilty, of nine specifications of violating a lawful general order by engaging in sexual harassment, two specifications of assault, unlawful entry, eight specifications of committing indecent acts, and five specifications of communicating indecent language, in violation of Articles 92, 128, 130, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 928, 930, and 934 (1994). The appellant was sentenced to 18 months confinement, total forfeiture of pay and allowances, reduction to E-l, and a bad-conduct discharge. In July 1999, the convening authority approved the sentence as adjudged and, except for the bad-conduct discharge, ordered it executed. In accordance with the terms of the appellant’s pretrial agreement, the convening authority suspended confinement in excess of 12 months and all forfeitures for 12 months from the date of his action. We have carefully reviewed the record of trial, the appellant’s four assignments of error, and the Government’s response. We conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the appellant’s sub stantial rights was committed. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c). Improper Calculation of Maximum Sentence In his first assignment of error, the appellant claims that the military judge erred in not applying the “ultimate offense” doctrine in calculating the maximum sentence for many of the appellant’s separate violations of Article 92, UCMJ. The appellant’s argument, based upon language contained in the Manual for Courts-Martial, United States (1998 ed.), Part IV, H 16(e)(2) [Note], asserts that, in the absence of the general order violated (prohibiting sexual harassment), he would on these same facts be subject to conviction for the ultimate offenses (i.e., indecent exposure and indecent language in violation of Article 134, UCMJ), which prescribe lesser maximum punishments of six months confinement each. The appellant is incorrect. ■ [1,2] The sentencing rule noted above, frequently referred to as the “ultimate offense doctrine,” was intended “to limit the punishment for certain orders violations where ‘the" }, { "docid": "17159217", "title": "", "text": "sentence as stated below (n.b., our decretal paragraph directs an appropriate reduction in forfeitures intended to reduce the appellant’s forfeitures by the equivalent of approximately three days of base pay due a service member in pay grade E-2). See United States v. Strickland, 36 M.J. 569, 571 (A.C.M.R.1992), and United States v. Keith, 36 M.J. 518, 519 (A.C.M.R.1992), and cases cited therein. Except as noted above, we conclude that the findings and sentence are correct in law and fact and that no error prejudicial to the substantial rights of the appellant was committed. Accordingly, we reassess the sentence and affirm the findings and only so much of the sentence as extends to confinement for four months, reduction to pay grade E-l, a bad-conduct discharge, and forfeiture of $475 pay per month for four months. Senior Judges FREYER and STRICKLAND and Judge MOLLISON, concur. . The appellant was tried by special court-martial on 15 October 1991. Based on pleas of guilty, he was convicted of three violations of Article 86, Uniform Code of Military Justice (UCMJ) Article 86, 10 U.S.C. § 886 (unauthorized absences from 4 January 1990 to 29 March 1991, 19 May to 17 July 1991, and 18 July to 1 August 1991). The judge sentenced him to confinement for four months, forfeiture of $500 pay per month for four months, reduction to pay grade E-l, and a bad-conduct discharge. . After this case arrived without assignments of error, we specified two issues: I. ARE THE PRETRIAL CONFINEMENT REVIEW PROVISIONS IN R.C.M. 305(h)(2)(A) AND (i)(l) TIMELY IN LIGHT OF COUNTY OF RIVERSIDE v. McLAUGHLIN, — u.s. —, in S.CT. 1661? II. IF NOT, WHAT RELIEF IS APPROPRIATE FOR A VIOLATION OF THE TIME LIMIT ESTABLISHED IN McLAUGHLIN? . If R.C.M. 305 is revised in light of McLaughlin, it would be useful to have set out those circumstances which would normally rebut the McLaughlin presumption. LARSON, Chief Judge (concurring): I concur but write separately to urge the Court of Military Appeals to re-examine its holding in Courtney v. Williams, 1 M.J. 267 (C.M.A.1976) that a commanding officer is not “neutral" }, { "docid": "19031402", "title": "", "text": "continue to be overpaid, after he discovered that the housing office had failed to report his change of circumstances. Cf. Antonelli, 43 M.J. at 183 (SrA Antonelli made an affirmative misrepresentation that he had provided support to his dependents, entitling him to the “with dependents” rate of BAQ which he received). There is persuasive evidence that the appellant did not take any affirmative steps to co-opt a recoupment, but, to the contrary, fully expected the Navy to recoup the overpayments, as it had in the past. Id. The appellant’s passive conduct, although it may have ramifications relating to dereliction of a duty by omission, does not láse to the same level of criminality as would more affirmative action. Id. We find the totality of the evidence creates a reasonable doubt that the appellant had the mens tea necessary for a violation of Article 121. The findings of guilty of Charge IV and its Specification are set aside and the Charge is dismissed. The remaining findings of guilty are affirmed. We have reassessed the sentence. United States v. Dresen, 40 M.J. 462 (C.M.A.1994); United States v. Jones, 39 M.J. 315 (C.M.A.1994); United States v. Reed, 33 M.J. 98 (C.M.A.1991); United States v. Peoples, 29 M.J. 426 (C.M.A.1990); United States v. Sales, 22 M.J. 305 (C.M.A.1986). The accused had two prior nonjudicial punishments, separated by less than a week. His enlisted evaluations were remarkable only in their resounding mediocrity. For his convictions of a short period of unauthorized absence and wrongful possession of cocaine, we are confident that, absent the erroneous finding, his sentence would have included, at the very least, a bad-conduct discharge. Therefore, we affirm only so much of the sentence approved on review below as includes a bad-conduct discharge. Senior Judge DeCICCO and Judge DOMBROSKI concur. . This Court is hampered in its efforts to determine upon what theory of culpability the appellant was convicted. In neither the opening statement nor the closing argument is there any indication of the government’s theory of the case for larceny, i.e., whether by obtaining or withholding. Since the finder-of-fact was the military" }, { "docid": "12114634", "title": "", "text": "Opinion of the Court EVERETT, Chief Judge: A special court-martial convicted appellant of possessing, introducing, and possessing with intent to distribute, marihuana, in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934, respectively. Thereafter, the judge sentenced him to a bad-conduct discharge, confinement for 120 days, forfeiture of $366 pay per month for 5 months, and reduction to the lowest enlisted grade. Notwithstanding a recommendation by the military judge that the discharge and portions of the confinement and forfeitures be suspended, both the convening and supervisory authorities approved the trial results. In turn, the United States Navy-Marine Corps Court of Military Review affirmed the findings and sentence in an unpublished opinion. This Court then granted review of appellant’s contention that the charges and specifications of which he was convicted were multiplicious for findings. 16 M.J. 407 (1983). We agree only as to one of the specifications, but we perceive no effect on the sentence. I According to specification 1 of Charge I, Zupancie violated Article 1151, U.S. Navy Regulations, 1973, by wrongfully possessing 672 grams of marihuana on board the USS CORAL SEA on March 3, 1982. Specification 2 alleged that he violated Article 1151 by wrongfully introducing 672 grams of marihuana on board the same vessel on that same day. The single specification of Charge II was based on the third clause of Article 134 of the Uniform Code and asserted that on March 3, 1982, appellant “intentionally and wrongfully” possessed, “with the intent to distribute, 672 grams” of marihuana, in violation of 21 U.S.C. § 841(a)(1). The specification alleging wrongful possession was included in the allegations of wrongful introduction in specification 2 of Charge I, as well as in the allegations of wrongful possession with intent to distribute in Charge II. Accordingly, the findings of guilty of specification 1 of Charge I cannot stand. United States v. Hendrickson, 16 M.J. 62 (C.M.A. 1983); United States v. Miles, 15 M.J. 431 (C.M.A. 1983); United States v. Gonnella, 14 M.J. 176 (C.M.A. 1982); United State v. Roman-Luciano, 13 M.J. 490 (C.M.A. 1982)." }, { "docid": "15300801", "title": "", "text": "the appellant that rise to the level of a violation of the Eighth Amendment or of Article 55, UCMJ. This assignment of error is without merit. Conclusion We set aside the appellant’s conviction of specification 1 of Charge II as a lesser-included offense of specification 3 of Charge II. We also set aside specification 4 of Charge II as a lesser-included offense of specification 5 of Charge II. Specifications 1 and 4 of Charge II are dismissed. All other findings are affirmed. As a result of our action on the findings, we have reassessed the sentence in accordance with the principles of United States v. Cook, 48 M.J. 434 (1998), United States v. Peoples, 29 M.J. 426, 428 (C.M.A.1990), and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A.1986). Upon reassessment, we approve only so much of the sentence as extends to confinement for 21 years, forfeiture of all pay and allowances, reduction to pay-grade E-l, and a dishonorable discharge. As a result of our determination that conditions of the appellant’s pretrial confinement exceeded those required to ensure the appel lant’s presence for trial, we award an additional 87 days of credit towards his sentence to confinement. A new promulgating order, reflecting the findings and sentence as modified by this decision and the term of the pretrial agreement, shall be issued. . The appellant’s pretrial agreement required the convening authority to suspend all confinement in excess of 7 years for a period of 12 months from the date of the appellant's release from confinement. The convening authority added an additional year when the appellant did not pay the adjudged fine. . The military judge erred in imposing a date for payment of the fine. When a fine is adjudged, it does not become due and payable until the convening authority takes action approving the fine. Art. 57, UCMJ. Although the military judge erred in setting a payment due date, this error did not prejudice the appellant. . United. States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411, 1967 WL 4276 (1967). . In his brief, the appellant reasserts the claim" }, { "docid": "19676055", "title": "", "text": "Judge RYAN delivered the opinion of the Court. A military judge sitting as a general court-martial convicted Appellant, consistent with his plea, of one specification of adultery, in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006). Contrary to his pleas, a panel of members with enlisted representation sitting as a general court-martial convicted Appellant of one specification of attempted adultery, two specifications of indecent conduct, one specification of sodomy, and two specifications of assault consummated by a battery, in violation of Articles 80,120,125, and 128, UCMJ, 10 U.S.C. §§ 880, 920, 925, and 928, respectively. The adjudged sentence provided for confinement for a period of eighteen months, forfeiture of all pay and allowances, a bad-conduct discharge, and reduction to E-l. The convening authority approved the sentence and ordered all but the punitive discharge to be executed. The United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) set aside the findings of guilty as to the two specifications of assault consummated by a battery, but affirmed the remaining findings. The NMCCA then conducted a sentence reassessment and affirmed the sentence as approved by the convening authority. United States v. Castellano, No. 201100248, slip op. at 9 (N-M.Ct.Crim.App. Jun. 26, 2012). On October 17, 2012, we granted Appellant’s petition to consider the following issue: IN MILLER v. CALIFORNIA THE SUPREME COURT HELD THAT THE TRIER OF FACT MUST DETERMINE WHETHER JUDICIALLY-CREATED FACTORS THAT DISTINGUISH BETWEEN CONSTITUTIONALLY-PROTECTED AND CRIMINAL CONDUCT ARE SATISFIED. THE FACTORS IDENTIFIED IN UNITED STATES v. MARCUM ARE AN EXAMPLE OF SUCH FACTORS BUT THE LOWER COURT HELD THAT THE MILITARY JUDGE MUST DETERMINE WHETHER THE MARCUM FACTORS ARE SATISFIED. WHO DETERMINES WHETHER THEY HAVE BEEN SATISFIED? In United States v. Marcum, consistent with the Supreme Court’s holding in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), this Court recognized that although “Article 125[, UCMJ,] prohibits every kind of unnatural carnal intercourse,” wholly private, consensual sexual activity between adults otherwise proscribed by Article 125, UCMJ, is constitutionally protected. United States v. Marcum, 60 M.J. 198, 202, 206-07 (C.A.A.F.2004)" }, { "docid": "4998725", "title": "", "text": "with the determination whether the statements taken in violation of Edwards were harmless beyond reasonable doubt. United States v. Remai, 19 M.J. 229 (C.M.A.1985); see United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Two illegally obtained inculpatory statements, under the facts of this case, cannot be deemed harmless. We find as fact that the remaining evidence is insufficient to sustain the findings of guilty of the Additional Charge and its specifications. IV. Multiplicity There exists an additional error which must be addressed. Appellant was convicted of one specification each of possession and use of marijuana. Specification 1 of the Charge alleges appellant, on 28 February 1981, at Aberdeen Proving Ground, Maryland, possessed some amount of marijuana. Specification 2 of the Charge alleges use of marijuana at the same time and place. The language of the specifications and the providence inquiry convince us the possession was multiplicious with the use. United States v. Bullington, 18 M.J. 164 (C.M.A.1984). The findings of guilty of Specification 1 of the Charge and of the Additional Charge and its three specifications are set aside. Specification 1 of the Charge and the Additional Charge and its specifications are dismissed. The remaining findings of guilty are affirmed. Reassessing the sentence on the basis of errors noted and the entire record, the court affirms only so much of the sentence as provides for confinement for three months, forfeiture of $334.00 pay per month for three months, and reduction to the grade of E-l. Senior Judge DeFORD and Judge WILLIAMS concur. . Uniform Code of Military Justice art. 31, 10 U.S.C. § 831 (1982) [hereinafter cited as UCMJ]; United States v. Tempia, 37 C.M.R. 249 (C.M.A.1967). . This court’s opinion on remand, 21 M.J. 768 (A.C.M.R.1985) is also published as an appendix to our higher court’s summary disposition. 21 M.J. 391 app. (C.M.A.1985). . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Indeed, CPT Fox recognized her duty to conduct a preliminary inquiry." } ]

[ { "docid": "22128974", "title": "", "text": "Court of Appeals is therefore Affirmed. Justice Brennan, with whom Justice Marshall joins, and with whom Justice Blackmun and Justice Stevens join as to Parts I, II, and III, dissenting. Last Term in Teague v. Lane, 489 U. S. 288 (1989), this Court manifested its growing hostility toward Congress’ decision to authorize federal collateral review of state criminal convictions, curtailing the writ of habeas corpus by dramatically restructuring retroactivity doctrine. The plurality declared that a federal court entertaining a state prisoner’s habeas petition generally may not reach the merits of the legal claim unless the court determines, as a threshold matter, that a favorable ruling on the claim would flow from the application of legal standards “ ‘prevailing at the time [the petitioner’s] conviction became final.’” Id., at 306 (quoting Mackey v. United States, 401 U. S. 667, 689 (1971) (Harlan, J., concurring in judgment in part and dissenting in part)). Thus, with two narrow exceptions, Teague, supra, at 307, 311-313, “new” rules of law provide no basis for habeas relief. The plurality stated that a ruling qualifies as “new” “if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” 489 U. S., at 301 (emphasis in original). Today, under the guise of fine-tuning the definition of “new rule,” the Court strips state prisoners of virtually any meaningful federal review of the constitutionality of their incarceration. A legal ruling sought by a federal habeas petitioner is now deemed “new” as long as the correctness of the rule, based on precedent existing when the petitioner’s conviction became final, is “susceptible to debate among reasonable minds.” Ante, at 415. Put another way, a state prisoner can secure habeas relief only by showing that the state court’s rejection of the constitutional challenge was so clearly invalid under then-prevailing legal standards that the decision could not be defended by any reasonable jurist. With this requirement, the Court has finally succeeded in its thinly veiled crusade to eviscerate Congress’ habeas corpus regime. I Because constitutional interpretation is an evolutionary process, the analytical distinction between legal rules “prevailing” at" } ]

[ { "docid": "11298010", "title": "", "text": "L.Ed.2d 334 (1989). Teague holds that new rules of criminal procedure may not be retroactively applied to cases on collateral review unless they fall into one of two narrow exceptions. 489 U.S. at 310, 311, 109 S.Ct. at 1075, 1076. As a threshold matter, we must consider whether X-Citement Video announced a new rule. We conclude that it did not. The Supreme Court has “defined new rules as those that were not ‘dictated by precedent existing at the time the defendant’s conviction became final.’ ” Sawyer v. Smith, 497 U.S. 227, 234, 110 S.Ct. 2822, 2827, 111 L.Ed.2d 193 (1990) (quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070). Our decision in X-Citement Video was dictated by the rule requiring scienter in obscenity prosecutions, a rule which had its origin in Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), and has been confirmed by a “long line of authority.” Stringer v. Black, — U.S.-,-, 112 S.Ct. 1130, 1137, 117 L.Ed.2d 367 (1992). We do not create a new rule when we simply apply “a rule of this general application,” Wright v. West, — U.S. -, -, 112 S.Ct. 2482, 2499, 120 L.Ed.2d 225 (1992) (Kennedy, J., concurring), to a new set of facts. See Stringer, — U.S. at-, 112 S.Ct. at 1135-37. Even if X-Citement Video could be considered to create a new rule, there is another independent basis for our holding. Teague’s non-retroactivity principle does not apply to substantive decisions like X-Citement Video. The government fails to recognize that we have previously distinguished between new rules of criminal procedure and new substantive decisions rendering invalid a statute under which the person seeking collateral relief was previously convicted and punished. Teague does not apply to the latter. U.S. v. Sood, 969 F.2d 774, 775-76 (9th Cir.1992); see also U.S. v. McClelland, 941 F.2d 999, 1001 (9th Cir.1991). In Sood, the two defendants were convicted in Guam of bribery pursuant to 18 U.S.C. § 666. Following their convictions, we held in another case that 18 U.S.C. § 666 applied only to the states and thus" }, { "docid": "8144769", "title": "", "text": "that deportation is a collateral consequence of a criminal conviction and that the Sixth Amendment does not require advice regarding collateral consequences. See United States v. Fry, 322 F.3d 1198, 1200 (9th Cir.2003); Jimenez v. United States, 154 Fed.Appx. 540, 541 (7th Cir.2005) (unpublished). In doing so, three Courts of Appeals explicitly rejected the argument that the enactment of the IIRIRA altered the calculus. See United States v. Gonzalez, 202 F.3d 20, 28 (1st Cir.2000) (holding that deportation remained a collateral consequence of conviction after the passage of the IIRIRA, and reaffirming its prior conclusion that an attorney’s failure to advise a client of his plea’s immigration consequences does not give rise to a cognizable ineffective assistance claim); Santos-Sanchez v. United States, 548 F.3d 327, 336-37 (5th Cir.2008) (concluding that “neither IIRIRA nor AEDPA has so altered the nature of deportation as to render it a direct consequence of a guilty plea,” and reaffirming that “counsel’s failure to inform a defendant of the collateral consequences of a guilty plea is never deficient performance under Strickland ”); Broomes v. Ashcroft, 358 F.3d 1251, 1257 (10th Cir.2004) (concluding that even under the IIRIRA and AEDPA, “deportation remains a collateral consequence of a criminal conviction, and counsel’s failure to advise a criminal defendant of its possibility does not result in a Sixth Amendment deprivation”). We acknowledge that “the mere existence of conflicting authority does not necessarily mean a rule is new.” Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), quoting Wright v. West, 505 U.S. 277, 304, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (O’Con-nor, J., concurring). But, in our view, “an objective reading of the relevant cases” demonstrates that Padilla was not dictated by precedent. Stringer v. Black, 503 U.S. 222, 237, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). It is true that, unlike so many lower courts, the Supreme Court has “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland.” Padilla, 130 S.Ct. at 1481. As such, prior to Padilla, the Court had" }, { "docid": "21082203", "title": "", "text": "relief requiring a new trial at the sentencing phase of the case. We will then focus on other claims that do not justify the grant of relief. I. Standard of Review We review the record and Dickerson’s constitutional claims against the backdrop of AEDPA, 28 U.S.C. § 2254(d). The statute limits the grant of federal habeas relief to cases in which a petitioner’s state court “adjudication ... (1) was contrary to, or ... an unreasonable application of, clearly established Federal [Supreme Court] law ... or (2) ... was based on an unreasonable determination of the facts .... ” Relevant Supreme Court precedent creating such AEDPA law includes “not only bright-line rules but also the legal principles and standards flowing from precedent,” Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir.2005) (quoting Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir.2002)), and cases establishing “a rule designed for the specific purpose of evaluating a myriad of factual contexts,” Wright v. West, 505 U.S. 277, 309, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Kennedy, J., concurring), a standard elaborated by Justice Kennedy later adopted by the Court. See Williams, 529 U.S. at 391, 120 S.Ct. 1495 (“That the Strickland test ‘of necessity requires a case-by-case examination of the evidence’ obviates neither the clarity of the rule nor the extent to which the rule must be seen as ‘established’ by this Court.”) (internal citation omitted); Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 2471, 162 L.Ed.2d 360 (2005) (O’Connor, J., concurring) (noting the “ ‘case-by-case examination of the evidence’ called for under our cases”); Williams, 529 U.S. at 382, 120 S.Ct. 1495 (Stevens, J., dissenting in part) (“In the context of this case, we also note that, as our precedent interpreting Teague has demonstrated, rules of law may be sufficiently clear for habeas purposes even when they are expressed in terms of a generalized standard rather than as a bright-line rule.”); Graham v. Collins, 506 U.S. 461, 506, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (Souter, J., dissenting) (“One general rule that has emerged under Teague is that application of existing precedent" }, { "docid": "13861210", "title": "", "text": "Cir.1998) (holding that petitioner seeking per se rule that counsel must subpoena all institutional records in capital cases would be barred by Teague, “but that leaves open the possibility that his lawyer failed to come up to minimum professional standards by not subpoenaing the records in the particular circumstances of this case”) (emphasis in original). This distinction is admittedly a murky one. The discovery of a new rule will depend entirely upon the level of generality at which the court defines the new holding. See Wright v. West, 505 U.S. 277, 311, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Souter, J., concurring). The holding in Padilla is an extension of the rule in Strickland. Strickland held that a defendant could have his conviction reversed if he could show that his counsel’s representation “fell below an objective standard of reasonableness,” and that deficiency prejudiced the defendant such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 687-88, 694, 104 S.Ct. 2052. The question for this court is whether Padilla announced a new rule, as defined by Teague, or whether the Court merely applied Strickland to new facts. Padilla could be described as establishing a per se rule that counsel must inform a chent of immigration consequences before an informed guilty plea may be entered. Alternatively, the case can be read as a straightforward application of Strickland: the petitioner’s attorney “fell below an objective standard of reasonableness,” because, as a factual matter, the professional standards at the time of the client’s plea required counsel to inform of potential immigration consequences. Both of these potential readings have some appeal. The government points out that the language of the opinion suggests the Justices recognized the novelty of its holding. Padilla, 130 S.Ct. at 1486 (“[W]e now hold that counsel must inform her client whether his plea carries a risk of deportation.”); id. at 1488 (Alito, J., concurring) (“[T]his Court has never held that a criminal defense attorney’s Sixth Amendment duties extend to providing advice about [collateral consequences of a" }, { "docid": "14256145", "title": "", "text": "Federal Government,” but not if the result in that case is “dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at 301, 109 S.Ct. at 1070. Petitioner’s conviction became final on November 28, 1998, when the Supreme Court denied certiorari review. Strickland, decided in 1984, established the law governing ineffective assistance of counsel claims and is the relevant precedent for our Teague analysis. Williams, Wiggins, and Rompilla are not new law under Teague. Justice Kennedy wrote in his concurrence in Wright v. West that when “the beginning point is a rule of this general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent.” 505 U.S. 277, 308-09, 112 S.Ct. 2482, 2499, 120 L.Ed.2d 225 (1992). We have echoed Justice Kennedy’s reasoning. See Hart v. Attorney Gen., 323 F.3d 884, 893 n. 16 (11th Cir.2003) (“We believe that in areas of the law ... in which general principles announced by the Supreme Court will out of necessity be applied to varying factual situations on a case by case basis, it is acceptable to derive clearly established federal law from these general principles.”). Strickland set forth the paradigmatic example of a rule of general application; it establishes a broad and flexible standard for the review of an attorney’s performance in a variety of factual circumstances. In Williams, Wiggins, and Rompilla, the Court did nothing more than apply Strickland’s standard to a specific set of circumstances: in Williams, counsel’s failure to uncover available state records indicating Williams’s “nightmarish childhood,” 529 U.S. at 395, 120 S.Ct. at 1514; in Wiggins, counsel’s failure to investigate Wiggins’s background, despite evidence of his abusive upbringing, 539 U.S. at 524, 123 S.Ct. at 2536-37; and in Rompilla, counsel’s failure to investigate a file containing evidence that the state intended to use in aggravation. 545 U.S. at 383, 125 S.Ct. at 2463. In concluding that these cases are not new law, we are following" }, { "docid": "8144786", "title": "", "text": "146 L.Ed.2d 389 (2000) (plurality) (quoting Butler, 494 U.S. at 414, 110 S.Ct. 1212). As the Court has stated, and as the majority today recognizes, “the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims,” id. at 391, 120 S.Ct. 1495 (opinion of the Court) (emphasis added). “[W]here the starting point is a rule of general application such as Strickland, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent,” Wright v. West, 505 U.S. 277, 308-09, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Kennedy, J., concurring). Given this clear language regarding Teague’s applicability in the Strickland context, I cannot find that the Supreme Court’s retroactivity cases where Strickland is not implicated compel a finding that the rule announced in Padilla is “new.” In Williams, the Court was addressing Strickland under the “clearly established law” requirement of 28 U.S.C. § 2254(d)(1), which a plurality found codified Teague’s requirement that federal habeas courts must deny relief that is contingent upon a rule of law not “clearly established” at the time the state conviction became final. 529 U.S. at 379-80, 120 S.Ct. 1495. Parts I, III, and IV of the opinion were on behalf of a majority. The opinion of the Court stated: It is past question that the rule set forth in Strickland qualifies as “clearly established Federal law, as determined by the Supreme Court of the United States.” That the Strickland test “of necessity requires a case-by-case examination of the evidence,” Wright, 505 U.S., at 308, 112 S.Ct. 2482 (Kennedy, J., concurring in judgment), obviates neither the clarity of the rule nor the extent to which the rule must be seen as “established” by this Court. This Court’s precedent “dictated” that the Virginia Supreme Court apply the Strickland test at the time that court entertained Williams’ ineffective-assistance claim.... And it can hardly be said that recognizing the right to effective counsel “breaks new ground or imposes a new obligation on the States.” 529 U.S. at 391, 120 S.Ct. 1495 (internal citations omitted). Where such a" }, { "docid": "13861208", "title": "", "text": "109 S.Ct. 1060. The Teague Court elaborated: Generally ... a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.... To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final. Id. (emphasis in original). The “dictated” language from Teague suggests a broad interpretation of what constitutes a new rule. Whenever uncertainty might exist about how a certain holding applies to a new context, then it could be said that the holding does not “dictate” the particular application. But the Supreme Court has not found that every novel application of an old precedent results in the announcement of a new rule. See, e.g., Stringer v. Black, 503 U.S. 222, 237, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992) (holding that cases invalidating use of vague aggravating factors in capital sentencing applied to Mississippi’s capital sentencing law despite the fact that Mississippi used a different method of weighing aggravating and mitigating factors); Penny, 492 U.S. at 318-19, 109 S.Ct. 2934 (holding that as-applied challenge to Texas death penalty statute did not seek application of new rule, despite earlier Supreme Court opinion rejecting facial challenge to the same statute). In Penny and Stringer, the Court determined that the results were “dictated” by law that existed at the time of the petitioner’s conviction. Yet, neither of these decisions was unanimous. In each, Supreme Court Justices disagreed about the logical reach of the Court’s earlier precedents. In its habeas corpus jurisprudence, the Court has maintained a distinction between a court’s statement of the law and its application of the law to a new set of facts. See Williams v. Taylor, 529 U.S. 362, 410-12, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under Teague, a novel statement of law will be considered a new rule while a new application of the rule will not. Butler v. McKellar, 494 U.S. 407, 414-15, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990); see also Thomas v. Gilmore, 144 F.3d 513, 516 (7th" }, { "docid": "5403217", "title": "", "text": "line of cases is applicable to the facts of this case, Soffar would be barred from relying on them by the non-retroactivity principle set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In Teague, the Supreme Court held that a new rule of law will not be applied on collateral review to cases that became final prior to the announcement of the new rule. Id. at 310, 109 S.Ct. 1060. In determining whether a rule is “new,” we must “survey the legal landscape as it then existed and determine whether a state court considering the defendant’s claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution.” Fisher v. Texas, 169 F.3d 295, 305 (5th Cir.1999) (citations omitted) (emphasis added). In order to qualify as existing, a rule must be dictated by Supreme Court precedent, not circuit court precedent. See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 375-76, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (Thomas, J., concurring) (discussing fact that “neither federal supremacy nor any other principle of federal law requires a state court’s interpretation of federal law give way to a (lower) federal court’s interpretation”); Burdine v. Johnson, 262 F.3d 336, 341 (5th Cir.2001) (en banc) (describing relevant inquiry under Teague as “whether a state court in 1987 would have felt compelled by Supreme Court precedent”); Glock v. Singletary, 65 F.3d 878, 885 (11th Cir.1995) (holding that federal courts of appeals “do not ‘dictate’ a particular rule to state courts”). But see, e.g., Williams v. Taylor, 529 U.S. 362, 380-82, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (Stevens, J. for four Justices) (discussing how AEDPA codifies Teague, yet extends the principle of Teague by limiting source of doctrine on which courts may rely in addressing habeas applications to Supreme Court precedent); Bell v. Hill, 190 F.3d 1089, 1093 (9th Cir.1999) (holding that state courts can be compelled to follow federal circuit case law if “foreordained” by Supreme Court precedent). Because the rules in Nash, Cherry" }, { "docid": "8144770", "title": "", "text": "”); Broomes v. Ashcroft, 358 F.3d 1251, 1257 (10th Cir.2004) (concluding that even under the IIRIRA and AEDPA, “deportation remains a collateral consequence of a criminal conviction, and counsel’s failure to advise a criminal defendant of its possibility does not result in a Sixth Amendment deprivation”). We acknowledge that “the mere existence of conflicting authority does not necessarily mean a rule is new.” Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), quoting Wright v. West, 505 U.S. 277, 304, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (O’Con-nor, J., concurring). But, in our view, “an objective reading of the relevant cases” demonstrates that Padilla was not dictated by precedent. Stringer v. Black, 503 U.S. 222, 237, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). It is true that, unlike so many lower courts, the Supreme Court has “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland.” Padilla, 130 S.Ct. at 1481. As such, prior to Padilla, the Court had not foreclosed the possibility that advice regarding collateral consequences of a guilty plea could be constitutionally required. But neither had the Court required defense counsel to provide advice regarding consequences collateral to the criminal prosecution at issue. 130 S.Ct. at 1495 (Scalia, J., dissenting). Moreover, the distinction between direct and collateral consequences was not without foundation in Supreme Court precedent. It can be traced to the Court’s jurisprudence regarding the validity of guilty pleas. To be valid, a guilty plea must be both voluntary and intelligent. Brady v. United States, 397 U.S. 742, 747, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The Court has long held that a plea is voluntary where the defendant is “fully aware of the direct consequences” of the plea. Id. The Court also has said that where “a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice ‘was within the range of competence demanded of attorneys in criminal cases.’ ” Hill," }, { "docid": "8144785", "title": "", "text": "Id. at 638 (citing Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Under such a reading, Padilla was a mere application of Strickland to the facts before the Court, and therefore not a “new rule.” Following Teague, the early Supreme Court retroactivity cases cast the “new rule” inquiry as whether or not “reasonable jurists” would agree that a rule was not “dictated” by precedent. See, e.g., Butler v. McKellar, 494 U.S. 407, 414, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990) (“The ‘new rule’ principle therefore validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.”); see also Sawyer v. Smith, 497 U.S. 227, 234, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). But this narrow conception of the “dictated” language from Teague is not the relevant inquiry in the Strickland context. “The often repeated language that Teague endorses ‘reasonable, good-faith interpretations’ by state courts is an explanation of policy, not a statement of law.” Williams v. Taylor, 529 U.S. 362, 383, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (plurality) (quoting Butler, 494 U.S. at 414, 110 S.Ct. 1212). As the Court has stated, and as the majority today recognizes, “the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims,” id. at 391, 120 S.Ct. 1495 (opinion of the Court) (emphasis added). “[W]here the starting point is a rule of general application such as Strickland, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent,” Wright v. West, 505 U.S. 277, 308-09, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Kennedy, J., concurring). Given this clear language regarding Teague’s applicability in the Strickland context, I cannot find that the Supreme Court’s retroactivity cases where Strickland is not implicated compel a finding that the rule announced in Padilla is “new.” In Williams, the Court was addressing Strickland under the “clearly established law” requirement of 28 U.S.C. § 2254(d)(1), which a plurality found codified Teague’s requirement that federal habeas courts must deny relief that is contingent upon a" }, { "docid": "22222011", "title": "", "text": "crucial term a number of ways. Justice O’Connor wrote in Teague itself that “[i]n general.. . a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. ... To put it differently, a case announces a new rule if the result was not dictated by precedent at the time the defendant’s conviction became final.” 489 U. S., at 301 (plurality opinion) (emphasis in original). We have said that novelty turns on whether the rule would represent a “development] in the law over which reasonable jurists [could] disagree,” Sawyer v. Smith, 497 U. S. 227, 234 (1990), and we have emphasized that reasonableness is not a wholly deferential standard, by making it clear that the existence of conflicting authority does not alone imply that any rule resolving that conflict is a new one, Stringer v. Black, 503 U. S. 222, 236-237 (1992). One general rule that has emerged under Teague is that application of existing precedent in a new factual setting will not amount to announcing a new rule. See Wright v. West, 505 U. S. 277, 304 (1992) (O’Connor, J., joined by Blackmun and Stevens, JJ., concurring in judgment) (“If a proffered factual distinction between the case under consideration and pre-existing precedent does not change the force with which the precedent’s underlying principle applies, the distinction is not meaningful, and any deviation from precedent is not reasonable”); id., at 309 (Kennedy, J., concurring in judgment) (“Where the beginning point is a rule of this general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent”); id., at 313 (Souter, J., concurring in judgment) (Teague “does not mean, of course, that a habeas petitioner must be able to point to an old case decided on facts identical to the facts of his own”). That said, it can be a difficult question whether a particular holding presents simply a new setting for" }, { "docid": "8144775", "title": "", "text": "[, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) ] is not at all to establish that those cases dictated that rule, that is, that all reasonable jurists would have agreed that those precedents led inexorably to Flores-Ortega ”). We recognize that the application of Strickland to unique facts generally will not produce a new rule. See Williams, 529 U.S. at 382, 120 S.Ct. 1495 (plurality) (“If the rule in question is one which of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule”) (quoting Wright v. West, 505 U.S. 277, 309, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Kennedy, J., concurring)). However, that guiding principle is not absolute. Id. (stating that “[w]here the beginning point is a rule of ... general application, ... it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent”). We believe Padilla to be the rare exception. Before Padilla, the Court had never held that the Sixth Amendment requires a criminal defense attorney to provide advice about matters not directly related to their client’s criminal prosecution. In Padilla, the Court held that constitutionally effective assistance of counsel requires advice about a civil penalty imposed by the Executive Branch (now the Department of Homeland Security, formerly the Immigration and Naturalization Service) after the criminal case is closed. In our view, that result was sufficiently novel to qualify as a new rule. Indeed, if Padilla is considered an old rule, it is hard to imagine an application of Strickland that would qualify as a new rule. Perhaps in the future the Court will conclude, given the breadth and fact-intensive nature of the Strickland reasonableness standard, that cases extending Strickland are never new. But until that time, we are bound to apply Teague in the context of Strickland. The specific contours of the Padilla holding further indicate that it is a new rule. Under the rule set forth in Padilla, the scope of an attorney’s" }, { "docid": "23128243", "title": "", "text": "particular case.” Op. at 889 (quoting O’Brien, 145 F.3d at 25). In the latter case, under AEDPA, the habeas court does not consider simply the objective reasonableness of the state decision, but rather determines whether it was “contrary to” such clearly established Supreme Court law. The difficult initial inquiry under AED-PA — whether the Supreme Court has articulated a rule specific enough to trigger “contrary to” review — is thus guided by the well-developed Teague caselaw, which is aimed toward the same end, and in which jurisprudential context Congress enacted AEDPA. Accord O’Brien, 145 F.3d at 25 (noting that “[n]ot coincidentally, the Courts pre-AEDPA habeas case law employed this approach in conducting Teag-ue ’s “new rule” inquiries, and other federal courts have followed this praxis (wisely, we believe) when construing section 2254(d)(1).”) (citations omitted). For example, the habeas court must not require the petitioner to point to a factually identical precedent in order to obtain review under the “contrary to” prong, just as, under Teague, a petitioner who sought to apply an old rule to a new factual setting was not necessarily barred by Teague. As Justice Kennedy has explained: “If the rule in question is one which of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule.... Where the beginning point is a rule of this general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent.” Wright v. West, 505 U.S. 277, 308, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (J. Kennedy, concurring). II. The issue presented in this case — deliberate government elicitation of incriminating statements in the absence of counsel — is one in which the Supreme Court has provided a well-established principle for resolution. Guided by Teague, I would analyze Matteo’s claim under the “contrary to” prong of § 2254(d)(1) and conclude that the state court’s decision was not" }, { "docid": "22571865", "title": "", "text": "decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law.”). However, the independent review undertaken under Delgado is not the equivalent of de novo review, but rather is a style of review which views the state court decision “through the ‘objectively reasonable’ lens ground by Williams.” Delgado, 223 F.3d at 982(quoting Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). In addition, “although we independently review the record, we still defer to the state court’s ultimate decision.” Pirtle, 313 F.3d at 1167. Even applying this less deferential standard of review, we find no substantive support for Alen’s legal position; he is asking us to make new law, which we cannot do. There is no clearly established federal law, as determined by the Supreme Court, to support Allen’s age and physical disability based claim. The Supreme Court has adopted the definition of new law fashioned in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to determine what qualifies as clearly established law under AEDPA. See Williams at 379, 120 S.Ct. 1495 (Stevens, J., for four justices) (“The antire-troactivity rule recognized in Teague, which prohibits reliance on ‘new rules,’ is the functional equivalent of a statutory provision commanding exclusive reliance on ‘clearly established law.’ ”). Teague counsels that “a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government,” or, to put it differently, “if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at 301, 109 S.Ct. 1060 (emphasis in original). Notably, Teague offers the Court’s decision in Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), as an example of a case which broke new ground. Id. We fail to see how Alen’s proposed restriction on capital punishment based upon his status as an elderly and infirm death row inmate would not qualify as breaking new ground or imposing" }, { "docid": "13861209", "title": "", "text": "and mitigating factors); Penny, 492 U.S. at 318-19, 109 S.Ct. 2934 (holding that as-applied challenge to Texas death penalty statute did not seek application of new rule, despite earlier Supreme Court opinion rejecting facial challenge to the same statute). In Penny and Stringer, the Court determined that the results were “dictated” by law that existed at the time of the petitioner’s conviction. Yet, neither of these decisions was unanimous. In each, Supreme Court Justices disagreed about the logical reach of the Court’s earlier precedents. In its habeas corpus jurisprudence, the Court has maintained a distinction between a court’s statement of the law and its application of the law to a new set of facts. See Williams v. Taylor, 529 U.S. 362, 410-12, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under Teague, a novel statement of law will be considered a new rule while a new application of the rule will not. Butler v. McKellar, 494 U.S. 407, 414-15, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990); see also Thomas v. Gilmore, 144 F.3d 513, 516 (7th Cir.1998) (holding that petitioner seeking per se rule that counsel must subpoena all institutional records in capital cases would be barred by Teague, “but that leaves open the possibility that his lawyer failed to come up to minimum professional standards by not subpoenaing the records in the particular circumstances of this case”) (emphasis in original). This distinction is admittedly a murky one. The discovery of a new rule will depend entirely upon the level of generality at which the court defines the new holding. See Wright v. West, 505 U.S. 277, 311, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Souter, J., concurring). The holding in Padilla is an extension of the rule in Strickland. Strickland held that a defendant could have his conviction reversed if he could show that his counsel’s representation “fell below an objective standard of reasonableness,” and that deficiency prejudiced the defendant such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 687-88, 694, 104 S.Ct. 2052." }, { "docid": "21782417", "title": "", "text": "Courts of Appeals for the Fourth and Seventh Circuits.\"). . 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). . Id. at 237, 112 S.Ct. 1130. . Id. (\"The short answer to the State's argument is that the Fifth Circuit made a serious mistake in [its decisions].”). . 505 U.S. 277, 285-95, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (opinion of Thomas, J.). . “Teague did not establish a 'deferential' standard of review of state court determinations of federal law. It did not establish a standard of review at all.... In Teague, we refused to give state prisoners the retroactive benefit of new rules of law, but we did not create any deferential standard of review with regard to old rules.” Id. at 303-04, 109 S.Ct. 1060 (O’Connor, J., concurring in the judgment). See also id. at 307, 109 S.Ct. 1060 (Kennedy, J., concurring in the judgment) (“Teague did not establish a deferential standard of review of state-court decisions of federal law.”). . See Williams v. Taylor, 529 U.S. 362, 382, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (opinion of Stevens, J.) (\"[W]hether or not a rule clearly established at the time a state court renders its final judgment of conviction is a question as to which the 'federal courts must make an independent evaluation.' ”); Williams, 529 U.S. at 402, 120 S.Ct. 1495 (opinion of O’Connor, J.) (\"If today's case were governed by the federal habeas statute prior to Congress' enactment of AEDPA in 1996, I would agree with Justice STEVENS that Williams' petition for habeas relief must be granted if we, in our independent judgment, were to conclude that his Sixth Amendment right to effective assistance of counsel was violated.”). I note that the AEDPA modified this rule. See id. at 409-13, 120 S.Ct. 1495 (opinion of the Court). The AEDPA does not apply to this case. The effective date of the AEDPA was April 24, 1996. Burdine filed his federal habeas petition in April 1995. E. GRADY JOLLY, Circuit Judge, joined by JERRY E. SMITH, Circuit Judge, dissenting: Because the record in this case makes clear" }, { "docid": "23252570", "title": "", "text": "straightforwardly applied the Strickland rule — and the norms of the legal profession that insist upon adequate warning to criminal defendants of immigration consequences — to the facts of Jose Padilla’s ease. See id. at 1482 (“Strickland applies to Padilla’s claim.... Under Strickland, we first determine whether counsel’s representation fell below an objective standard of reasonableness.” (internal quotation marks omitted)). At bottom, our inquiry focuses on whether Padilla’s application of the Strickland standard to a new factual context is a “new rule” for Teague purposes. The Strickland standard “provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims.” Lewis v. Johnson, 359 F.3d 646, 655 (3d Cir.2004) (internal quotation marks omitted). In Lewis, the most recent instance in which we performed this kind of analysis, we sought to determine whether the Supreme Court’s decision in Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), holding that counsel has a duty to consult with his client about taking an appeal under certain circumstances, announced a new rule. We found that it did not, and in doing so, discussed in some detail the appropriate retroactivity analysis for cases involving Strickland. Looking to the intersection of Strickland and Teague, we made three observations that guide the “new rule” inquiry: (1) “case law need not exist on all fours to allow for a finding under Teague that the rule at issue was dictated by ... precedent,” Leuns, 359 F.3d at 655; (2) “Strickland is a rule of general applicability which asks whether counsel’s conduct was objectively reasonable and conformed to professional norms based ‘on the facts of the particular case, viewed as of the time of counsel’s conduct,’ ” id. (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052 (emphasis in quotation)); and (3) “ ‘it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent,’ ” id. (quoting Wright v. West, 505 U.S. 277, 308-09, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Kennedy, J., concurring in judgment) (emphasis omitted)). “[T]he Strickland Court identified ‘certain basic duties’ that" }, { "docid": "17672642", "title": "", "text": "Valdez v. Cockrell, 274 F.3d 941, 950 (5th Cir.2001). . Id. at 949. . May v. Collins, 955 F.2d 299, 314 (5th Cir.1992). . See, e.g., Clark v. Johnson, 202 F.3d 760, 766 (5th Cir.2000) (\"[W]e have repeatedly found that a paper hearing is sufficient to afford a petitioner full and fair fearing on the factual issues underlying the petitioner’s claims, especially where, as here, the trial court and the state habeas court were one in the same.”). . Fahle v. Cornyn, 231 F.3d 193, 196 (5th Cir.2000) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). . 28 U.S.C. § 2254(d). . Williams v. Taylor, 529 U.S. 362, 377, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). . Id. at 382, 120 S.Ct. 1495 (quoting Wright v. West, 505 U.S. 277, 305, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (O'Connor, J., concurring in judgment)). . Id. at 406, 120 S.Ct. 1495 (quotations omitted). . Id. . Id. at 388, 120 S.Ct. 1495. . Atkins, 536 U.S. at 317, 122 S.Ct. 2242 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)). . See Williams, 529 U.S. at 382, 120 S.Ct. 1495 (holding that \"rules of law may be sufficiently clear for habeas purposes even when they are expressed in terms of a generalized standard rather than as a bright-line rule .... 'If the rule in question is one which of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule .... Where the beginning point is a rule of this general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent.' ” (quoting Wright v. West, 505 U.S. 277, 308-09, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Kennedy, J., concurring in judgment))). . 536 U.S. at 318, 122 S.Ct. 2242. . Id. at" }, { "docid": "3241665", "title": "", "text": "ground by which it could have decided the case without adjudicating it on the merits. See id. Indeed, the two justices of the Appellate Division that dissented did so on the ground that the Double Jeopardy Clause was not offended. See Van Leer-Greenberg, 215 A.D.2d at 286, 626 N.Y.S.2d at 782. Third, the Court of Appeals’s opinion does not rely upon procedural grounds for a determination. See 87 N.Y.2d at 997, 665 N.E.2d at 189, 642 N.Y.S.2d at 619. Because Morris’s double jeopardy claim was therefore adjudicated on the merits, the district court correctly found that 2254(d) deference is due the state court decision. Therefore, this Court is constrained to apply “clearly established Federal law,” as determined by the holdings, not dicta, of the United States Supreme Court. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “[Wjhatever would qualify as an old rule under [the Supreme Court’s] Teague jurisprudence [ ] constitute^] ‘clearly established Federal law, as determined by the Supreme Court of the United States’ under 2254(d)(1).” Id. (citation omitted). This Court must, however, be mindful that ‘even on habeas, [it has] an independent obligation to say what the law is.’ Id. at 411, 120 S.Ct. 1495 (quoting Wright v. West, 505 U.S. 277, 305, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992)) (emphasis added). The question for this Court then is whether under the circumstances of this case, the state court’s decision to permit prosecution of petitioner on the reinstated felony charge was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). If we determine that petitioner is relying upon double jeopardy law which was clearly established federal law at the time of his prosecution, within the meaning of 2254(d), this Court must examine the state court decision and, guided by Williams, determine -whether it is contrary to or an unreasonable application of that law. B. The Facts on Revieio As noted earlier, in a habeas proceeding, “a determination of a factual issue made by a" }, { "docid": "8144774", "title": "", "text": "was dictated by Strickland. Id. at 44, 949 N.E.2d 892. Under Teague, a rule is old only if it sets forth the sole reasonable interpretation of existing precedent. Lambrix, 520 U.S. at 538, 117 S.Ct. 1517. The fact that Padilla is an extension of Strickland says nothing about whether it was new or not. See Saffle, 494 U.S. at 488, 110 S.Ct. 1257 (“it is more difficult, however, to determine whether we announce a new rule when a decision extends the reasoning of our prior cases”); Butler, 494 U.S. at 415, 110 S.Ct. 1212 (“the fact that a court says that its decision is within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a prior decision, is not conclusive for purposes of deciding whether the current decision is a ‘new rule’ under Teague ”); Frazer v. South Carolina, 430 F.3d 696, 720 (4th Cir.2005) (Luttig, J., dissenting) (“to establish that the Supreme Court relied exclusively on the principles of prior cases in reaching the rule of [Roe v.] Flores-Ortega [, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) ] is not at all to establish that those cases dictated that rule, that is, that all reasonable jurists would have agreed that those precedents led inexorably to Flores-Ortega ”). We recognize that the application of Strickland to unique facts generally will not produce a new rule. See Williams, 529 U.S. at 382, 120 S.Ct. 1495 (plurality) (“If the rule in question is one which of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule”) (quoting Wright v. West, 505 U.S. 277, 309, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Kennedy, J., concurring)). However, that guiding principle is not absolute. Id. (stating that “[w]here the beginning point is a rule of ... general application, ... it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent”). We believe Padilla to be the rare exception." } ]

[ { "docid": "17069685", "title": "", "text": "However in all of the cases cited by Prewitt, the courts were careful to determine that service of process was in substantial compliance with the formal requirements of the Federal Rules; actual notice alone was not enough to allow the court personal jurisdiction over the defendant. See Sanderford v. Prudential Ins. Co. of America, 902 F.2d 897 (11th Cir.1990) (holding that service of process was in substantial compliance with Fed. R.Civ.P. 4(b) even though it did not include a return date for the responsive pleading); Direct Mail Specialists, Inc. v. Eclat Computerized Tech. Inc., 840 F.2d 685 (9th Cir.1988) (finding that a corporation's receptionist had sufficient authority to receive service of process as a \"managing or general agent” under Fed.R.Civ.P. 4(d)(3) and noting that the president of the company received actual notice of the summons and complaint a day later); United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371 (9th Cir.1984) (holding that service was effective under Fed. R.Civ.P. 4(b) even though the summons had a typographical error stating that the defendant had 10 rather than 20 days to answer the complaint); Banco Latino, S.A.C.A. v. Gomez Lopez, 53 F.Supp.2d 1273 (S.D.Fla.1999) (finding that personal delivery of service of process on the defendant in Spain was sufficient because it was authorized under Spanish law as required by the Hague Convention and Fed.R.Civ.P. 4(f)(1) and the defendant had actual notice even though he only received a copy of the summons and not the complaint because he departed hastily). . “Personal jurisdiction is a composite notion of two separate ideas: amenability to jurisdiction, or predicate, and notice to the defendant through valid service of process.” DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1264 (5th Cir.1983). . Expert Dec! of Dr. Wolfgang Hahnkam-per, Dist. Ct. Doc. 56, Exh. 8 at 4. . The Austrian Administrative Court (\"Ver-waltungsgerichtshof”) has held that a breach of a rule in an international agreement on service of process was not a \"simple defect of service\" that could be cured by Section 7 of the Austrian Service Act. The court stated the rule that:" } ]

[ { "docid": "17016666", "title": "", "text": "district of the United States in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant. Id. Fed.R.Civ.P. 4(e)(1) provides that service may be effected “pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State.” Id. New York law provides that “personal service upon a corporation ... shall be made by delivering the summons as follows ... upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service.” N.Y. C.P.L.R. § 311(a)(1) (McKinney 1999). New York courts have construed § 311 broadly. See, e.g., Martin v. Archway Inn, 164 A.D.2d 843, 844-45, 559 N.Y.S.2d 731, 732 (1990) (finding service was proper where the process server testified that the recipient was in charge of the defendant’s bar and represented herself as a manager and the recipient never contradicted the process server’s testimony because although the recipient “did not hold one of the positions specifically enumerated in CPLR 311(1), [t]he statute [] should not be read in a narrow and overly technical manner ... [T]he process server cannot be expected to know the corporation’s inter nal practices. Reliance may be based on the corporate employees to identify the proper person to accept service.”) (citation omitted); McBride v. County of Schenectady, 110 A.D.2d 1000, 1001-02, 488 N.Y.S.2d 288, 290 (1985) (finding service proper where the recipient “received process on behalf of [the defendant] at [the defendant’s] office in the City of. Schenectady. [The recipient] had in fact been an employee" }, { "docid": "6924858", "title": "", "text": "wrongful collection practices. The Complaint asserts jurisdiction under the Civil Rights Act of 1871, 42 U.S.C. § 1983, pursuant to 28 U.S.C. § 1343(3), and general federal question jurisdiction under 28 U.S.C. § 1331; and plaintiffs have asked the Court to exercise pendent jurisdiction over their claims arising under the common law of Pennsylvania. The defendants, besides PGW, are: The City of Philadelphia and the Philadelphia Gas Commission; the Philadelphia Facilities Management Corporation (a “private” non-profit corporation which manages PGW on behalf of the City); and the following individuals: the Mayor of Philadelphia, the members of the Philadelphia Gas Commission, and the Vice-President and members of the Board of Directors of the Philadelphia Facilities Management Corporation. A hearing on plaintiffs’ application for a temporary restraining order was held on November 16, 1973. Following that hearing, I entered an Order denying immediate injunctive relief. Thereafter, with the approval and encouragement of the Court, counsel for the parties worked out interim procedures for processing individual billing disputes between consumers and the utility, and agreed that this procedure would remain in effect pending final disposition of the lawsuit. Under this arrangement, in the case of a dispute as to the amount of, or liability for, a particular gas bill, PGW continues to supply gas service (or resumes service which was previously terminated for non-payment), pending adjustment or other disposition of the disputed claim through local legal procedures, provided the customer tenders a security deposit in an amount estimated to reflect current usage, and agrees to pay all future bills when due except in the case of obvious computer error. To date, this interim procedure has been invoked satisfactorily in more than 140 instances. I have no hesitation in stating that it has been my hope that experience gained from implementation of this interim procedure might lead to an amicable adjustment of all of the outstanding disputes between the parties. Unfortunately, however, neither side appears willing to accept this temporary arrangement as a basis for a permanent solution to the problem, and both sides insist upon a judicial resolution of all of the legal" }, { "docid": "22262646", "title": "", "text": "for surprise and fraud on the part of appellees. We consider these arguments in turn. A. Proper Service Under Fed.R.Civ.P. 4 A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under Fed.R.Civ.P. 4. Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982). However, “Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint.” United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir.1984). Nonetheless, without substantial compliance with Rule 4 “neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction.” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.1986), cert. denied, — U.S. —, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). Service on a corporation is proper if made pursuant to Fed.R.Civ.P. 4(d)(3) or 4(c)(2)(C)(i). See 2 J. Moore, J. Lucas, H. Fink & C. Thompson, Moore’s Federal Practice ¶ 4.22[1], at 4-185 (2d ed. 1987). The appellant claims that service was not proper under either provision and the appellee claims it was proper under both. We find service was proper under Rule 4(d)(3) and, therefore, will not discuss Rule 4(c)(2)(C)(i). Rule 4(d)(3) states that service may be made on a corporation “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.” The appellee, DMS, does not contend that the receptionist precisely filled any of these roles. In fact, the appellant claims that she was not even an employee of Eclat (presumably she was an employee of CT). Several courts and commentators have reflected on what role a person must fill to be able to accept process for a company. Despite the language of the Rule, service of process is not limited solely to officially designated officers, managing agents, or agents appointed by law for the receipt of process. The rules are to be applied in a manner that will best effectuate their purpose" }, { "docid": "17697545", "title": "", "text": "the designated recipient. The registered agent was in jail at the time and his spouse signed the return receipt. The district court found this deficient, reasoning that under Rule 4(d)(2) of the Massachusetts Rules of Civil Procedure, “proper service on a domestic corporation requires delivery to a corporate officer, a managing or general agent, or the person in charge at its principal place of business within the Commonwealth.” Smith v. Jenkins, 777 F.Supp.2d 264, 268 (D.Mass.2011). The court concluded that Smith failed to comply -with the service of process rule and, by extension, the demand letter requirement, because he failed to designate Union Capital’s registered agent as the letter’s recipient. Id. No authority has been cited for the proposition that a Chapter 93A demand letter must be served on a defendant in compliance with the Massachusetts service of process rules, and we have found none. In fact, Chapter 93A suggests quite the opposite. All that the statute requires is that a demand letter be “mailed or delivered” to a prospective respondent. In contrast, rules governing service of process are more demanding. See Mass. R. Civ. P. 4. Distinguishing between mailing or delivering a demand letter and service of process accords with the Massachusetts Business Corporation Law, which specifies that a corporation’s registered agent is its agent for “service of process, notice, or demand required or permitted by law to be served on the corporation.” Mass. Gen. Laws ch. 156D, § 5.04. Hence, Smith could serve the demand letter on Union Capital by mailing it to the company’s registered agent. Nothing suggests that he had to designate the registered agent as the recipient instead of the corporation. Because Smith complied with the demand letter requirement in this instance, we remand the claim to the district court for a determination on the merits. With respect to Century 21, Smith mailed two copies of the demand letter via certified mail to “James Adamos c/o Century 21” and to “Ivana Foley c/o Century 21” at Century 21’s address. Neither sales agent was employed by Century 21 at the time and the letters were returned" }, { "docid": "2944988", "title": "", "text": "Similarly, a federal plaintiff may serve process on a local government by delivering a copy of the summons and complaint to its chief executive officer, or by serving the local government in compliance with the law of the state where the federal court is located. Fed.R.Civ.P. 4(j)(2). Neither the Henderson Police Department nor the two individual officers are the chief executive officer of the City of Henderson, and plaintiff similarly did not comply with North Carolina’s rules for serving process on a city. See N.C. R. Civ. P. 4(j)(5)(a) (process may be served on a city by personally delivering the summons and complaint to the city’s “mayor, city manager or clerk,” or by sending the summons and complaint through the postal service or a private equivalent thereof addressed to the city’s mayor, manager, or clerk and obtaining a return receipt). Accordingly, plaintiff did not complete service of process on any of the defendants. Giving plaintiff the benefit of the date listed on the court’s docket sheet, plaintiff filed his complaint on November 26, 2007. Because plaintiff has not effected service of process on any defendant nor offered any explanation for his failure to do so, and because 120 days have passed since plaintiff filed his complaint, plaintiffs action is dismissed without preju dice against all defendants. See Fed.R.Civ.P. 4(m) & 6(a). III. For the reasons stated above, this action is DISMISSED -without prejudice against all defendants. . Plaintiff improperly sued “Officer Erin Elem-er” of the Henderson, North Carolina Police Department. The court refers to Officer Ellerman by her real name. . Plaintiff improperly sued the “City of Henderson Police Department.” The Henderson Police Department is a division of the City of Henderson, and court refers to this entity as the City. . Accordingly, plaintiff did not even sue the correct defendant." }, { "docid": "6924857", "title": "", "text": "MEMORANDUM AND ORDER FULLAM, District Judge. Plaintiffs in this action challenge certain policies and practices of the Philadelphia Gas Works (PGW) which, it is claimed, deprived plaintiffs and others similarly situated of their constitutional rights. Specifically, it is alleged that the defendants, individually and collectively, acting under color of state law, have violated, and continue to violate, the following constitutional rights of the plaintiffs: (1) their right to procedural due process, by terminating gas service without adequate notice and an opportunity for a prior evidentiary hearing; (2) their right to be secure in their persons and property, by unlawfully entering plaintiffs’ homes for the purpose of shutting off gas service; and (3) their right to equal protection and due process, by enforcing security deposit policies which are arbitrary and capricious, and which discriminate against low-income gas consumers in the City of Philadelphia. In addition, plaintiffs assert various common law tort claims for invasion of privacy, and for intentional or reckless infliction of emotional and physical distress in connection with defendants’ use of allegedly unfair and wrongful collection practices. The Complaint asserts jurisdiction under the Civil Rights Act of 1871, 42 U.S.C. § 1983, pursuant to 28 U.S.C. § 1343(3), and general federal question jurisdiction under 28 U.S.C. § 1331; and plaintiffs have asked the Court to exercise pendent jurisdiction over their claims arising under the common law of Pennsylvania. The defendants, besides PGW, are: The City of Philadelphia and the Philadelphia Gas Commission; the Philadelphia Facilities Management Corporation (a “private” non-profit corporation which manages PGW on behalf of the City); and the following individuals: the Mayor of Philadelphia, the members of the Philadelphia Gas Commission, and the Vice-President and members of the Board of Directors of the Philadelphia Facilities Management Corporation. A hearing on plaintiffs’ application for a temporary restraining order was held on November 16, 1973. Following that hearing, I entered an Order denying immediate injunctive relief. Thereafter, with the approval and encouragement of the Court, counsel for the parties worked out interim procedures for processing individual billing disputes between consumers and the utility, and agreed that this procedure" }, { "docid": "13342424", "title": "", "text": "courts under its long-arm statute; (2) assuming the defendant would not be found present, but would nevertheless, be reached by the long-arm statute, does that statute, as interpreted, satisfy the due process clause of the Fourteenth Amendment to the United States Constitution by premising its extension of jurisdiction over the defendant upon activities whereby the defendant made certain minimum contacts with Missouri sufficient to put the defendant on notice that it would be subject to the jurisdiction of Missouri courts and to make the exercise of personal jurisdiction reasonable; and (3) have plaintiffs properly effected service of process under Missouri statutes governing service of process? Both parties have submitted exhibits and affidavits, and the depositions of two corporate officers familiar with facts relevant to this issue have been taken. (1) “Corporate Presence” In Missouri Plaintiffs claim that Beech is “present” in Missouri because Beech is “doing business” in the state. They further contend that service of process has been validly made upon Beech, as specified in Rule 4(d)(3) and (7), Fed.R.Civ.P., and Mo.Rev.Stat. § 506.-150 (Vernon’s Cum.Supp.1979) by delivery of the summons and complaint to Paul Foster, assistant manager of Executive Beech-craft, Inc. (Executive), located in Kansas City, Missouri; Claudette Snelson, officer manager of Meisinger Beechcraft Sales, Inc., (Meisinger Sales) located in Chesterfield, Missouri; Mark W. Meising, Vice-President of Meisinger Beechcraft, Inc. (Meisinger Beechcraft), located in Kansas City, Missouri; and D. J. Van DenBeck, executive vice-president of the Mid-Coast Aviation Service (Mid-Coast) located at the Lambert-Field, St. Louis, Missouri airport. Each of these four companies is alleged to be a representative of Beech: Executive is described as a Beech “distributor”; Meisinger Sales is described as a Beech “agent”; Meisinger Beechcraft is described as a Beech “distributor”; and Mid-Coast is described as a Beech “service center”. Plaintiffs also effected service upon the Secretary of State of Missouri, James C. Kirkpatrick, under Mo.Rev.Stat. § 351.380(1) (Ver non’s 1966), apparently as a precaution should none of the four companies served be deemed representatives of or agents authorized by Beech to receive service of process. Rule 4(d)(3), Fed.R.Civ.P., authorizes service upon a “foreign corporation" }, { "docid": "23597040", "title": "", "text": "nothing in the record indicates that either the secretary to the clerk or the director of elections was authorized as the individuals’ agent for service of process. The district court also could have acquired jurisdiction over the individual defendants had they voluntarily appeared, but the record, rather than reflecting such a voluntary appearance, reflects that the attorneys for the City, in their answers to plaintiffs’ complaint and amended complaint, carefully limited their answer to “defendant City of Dearborn, only.” Service of process was, however, sufficient to permit the judgment to run against the City and the city council. Admittedly, no “chief executive offieer[s]” of those organizations were served. Fed.R. Civ.P. 4(d)(6). Compare Mathias v. City of Milwaukee Dep’t of City Development, 377 F.Supp. 497, 499 (E.D.Wis.1974) (service on department commissioner sufficient) with Mendoza v. City of Miami, 483 F.2d 430 (5th Cir. 1973) (service on wives of chief executive officers insufficient) and United States Steel Corp. v. Multistate Tax Comm’n, 367 F.Supp. 107, 118 (S.D.N.Y.1973) (service on commission tax auditor insufficient). But Fed.R.Civ.P. 4(d)(6) also authorizes a government organization to be served “in the manner prescribed by law of that state . upon any such defendant.” Mich. Comp.Laws Ann. § 600.1925 (1968), and its corollary court rule, Mich.Gen.Court Rule .105.6 (1973), provide that “[sjervice of process on public, municipal, quasi-municipal, or governmental corporations, unincorporated boards, or public bodies, may be made by leaving a summons and a copy of the complaint with “(2) the mayor, city clerk, or city attorney, in the case of cities; . “(8) the president, chairman, secretary, manager or clerk, in the case of any other public body organized or existing under the constitution or any law of this state, when by statute no other method of service is specially provided. “The service of process may be made on any officer having substantially the same duties as those named or described irrespective of their titles. In any case, service may be made by leaving a summons and a copy of the complaint with a person in charge of the office of any of the above-described officers" }, { "docid": "17697544", "title": "", "text": "on the defendants in compliance with the Massachusetts service of process rules. We review the grant of the motions de novo, taking the facts in the light most favorable to Smith. McLane, Graf, Raulerson & Middleton, P.A. v. Rechberger, 280 F.3d 26, 39 (1st Cir.2002). We begin with the demand letter requirement. As a prerequisite to suit, Chapter 93A requires that “a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be mailed or delivered to any prospective respondent.” Mass. Gen. Laws ch. 93A, § 9(3). The dual purpose of this requirement is “to encourage negotiation and settlement” and “to operate as a control on the amount of damages.” Slaney v. Westwood Auto, Inc., 366 Mass. 688, 322 N.E.2d 768, 779 (1975). Smith addressed a demand letter to Union Capital and mailed it via certified mail to the address of Union Capital’s registered agent in Massachusetts, without specifying the registered agent or any oth er agent of the company as the designated recipient. The registered agent was in jail at the time and his spouse signed the return receipt. The district court found this deficient, reasoning that under Rule 4(d)(2) of the Massachusetts Rules of Civil Procedure, “proper service on a domestic corporation requires delivery to a corporate officer, a managing or general agent, or the person in charge at its principal place of business within the Commonwealth.” Smith v. Jenkins, 777 F.Supp.2d 264, 268 (D.Mass.2011). The court concluded that Smith failed to comply -with the service of process rule and, by extension, the demand letter requirement, because he failed to designate Union Capital’s registered agent as the letter’s recipient. Id. No authority has been cited for the proposition that a Chapter 93A demand letter must be served on a defendant in compliance with the Massachusetts service of process rules, and we have found none. In fact, Chapter 93A suggests quite the opposite. All that the statute requires is that a demand letter be “mailed or delivered” to a prospective respondent. In contrast, rules governing" }, { "docid": "10497318", "title": "", "text": "II. Title VII This claim should not be dismissed. Defendant argues that the suit should not go forward (a) because defendant was never properly served, and (b) because the plaintiff never received a right-to-sue letter from the United States Attorney General. Therefore, defendant contends, this court has no subject matter jurisdiction. A. Service of Process Although defendant has had ample notice of everything filed in this case, affidavits filed by the defendant make it clear that proper service was never completed. Proper service, absent a waiver by the defendant, is a necessary element of due process. Since defendant has indicated that it demands proper service, and since it has gone to great pains and great expense to preserve the issue, the case will not progress until defendant has been properly served. Federal Rule of Civil Procedure 4(d)(6) states that service may be properly completed upon a municipal corporation in the manner prescribed by state law. N.C.G.S. § 1A-1, Rule 4(j)(5)a., states that service upon a city may be properly completed “by mailing a copy of the summons and of the complaint, ... certified mail, return receipt requested, addressed to [the city’s] mayor, city manager or clerk.” The court, therefore, will issue and serve process on the defendant pursuant to 28 U.S.C. § 1915(c) and Federal Rule of Civil Procedure 4(d)(6) and N.C.G.S. § 1A-1, Rule 4(j)(5)a., and the case will not be dismissed for insufficient service of process. B. Subject Matter Jurisdiction Defendant argues that this court has no subject matter jurisdiction over this case because, although the plaintiff has received a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC), she has not received a right-to-sue letter from the United States Attorney General. The language of 42 U.S.C. § 2000e-5(f)(1) requires plaintiff first to obtain a right-to-sue letter from the Attorney General because this is a suit against a “government, governmental agency, or political subdivision.” The fact that plaintiff has not received a right-to-sue letter from the Attorney General does not, as the defendant asserts, however, deprive this court of subject matter jurisdiction. Courts which have considered the question" }, { "docid": "2944987", "title": "", "text": "Henderson authorized to accept service on behalf of Spence or Ellerman. See Spence Aff. II3 (“I have not authorized anyone to accept or waive service of the Summons and Complaint on my behalf in this action.”); Ellerman Aff. II3 (same). Third, and finally, even if plaintiff had provided defendants the proper documents and could serve the various defendants collectively, process may not be served by facsimile. A federal plaintiff may serve process on an individual by handing a summons and complaint to the individual personally, by leaving a summons and complaint at the individual’s house or other place of abode, by serving the individual’s authorized agent, or by serving the individual in compliance with the law of the state where the federal court is located. Fed.R.Civ.P. 4(e). Service by facsimile does not fit into any of the first three categories, and “[North Carolina Rule of Civil Procedure 4(j)(l) ] is clear and unambiguous as to the manner for effecting service of process; it does not provide for service by facsimile.” Gant, 314 F.Supp.2d at 533. Similarly, a federal plaintiff may serve process on a local government by delivering a copy of the summons and complaint to its chief executive officer, or by serving the local government in compliance with the law of the state where the federal court is located. Fed.R.Civ.P. 4(j)(2). Neither the Henderson Police Department nor the two individual officers are the chief executive officer of the City of Henderson, and plaintiff similarly did not comply with North Carolina’s rules for serving process on a city. See N.C. R. Civ. P. 4(j)(5)(a) (process may be served on a city by personally delivering the summons and complaint to the city’s “mayor, city manager or clerk,” or by sending the summons and complaint through the postal service or a private equivalent thereof addressed to the city’s mayor, manager, or clerk and obtaining a return receipt). Accordingly, plaintiff did not complete service of process on any of the defendants. Giving plaintiff the benefit of the date listed on the court’s docket sheet, plaintiff filed his complaint on November 26, 2007. Because" }, { "docid": "15441853", "title": "", "text": "pursuant to Rule 4(c)(2)(C)(ii) of the Federal Rules of Civil Procedure.” However, service under that rule was ineffective for the same reasons that the original service from the Eastern District of Pennsylvania failed: (1) service by mail, as authorized by Rule 4(c)(2)(C)(ii), is limited to in-state defendants by Rule 4(f); and (2) the acknowledgment form was never returned, necessitating personal service that was never effectuated. Because there has not been compliance with Rule 4(c)(2)(C)(ii), we address whether the post-transfer service on Ehrn-schwender was effective under New York law. See Fed.R.Civ.P. 4(e) (service upon party not inhabitant of or found within state may be effected according to forum state laws). New York’s long-arm statute, C.P.L.R. § 302(a)(2) (McKinney 1990), authorizes personal jurisdiction over a person who “commits a tortious act within the state.” However, the statutory procedures must be strictly followed for service to be effective. See Markoff v. South Nassau Community Hosp., 61 N.Y.2d 283, 288, 473 N.Y.S.2d 766, 461 N.E.2d 1253 (1984) (“Actual notice alone will not sustain the service or subject a person to the court’s jurisdiction when there has not been compliance with prescribed conditions of service.”); Miron Lumber Co., Inc. v. Phylco Realty Dev. Co., 151 Misc.2d 139, 572 N.Y.S.2d 992, 995 (N.Y.City Civ.Ct.1991) (“[Service of process which does not strictly comply with specifically authorized statutory methods will not be upheld even if defendant subsequently receives the improperly served process and thereby learns that an action is pending against it.”). In the instant matter, Buggs did not follow the statutory methods of service on out-of-state residents outlined in N.Y.C.P.L.R. § 312-a. New York law allows for service of process by first-class mail against out-of-state defendants as an alternative to personal service of process, see N.Y.C.P.L.R. § 312-a(a), with service of process “complete on the date the signed acknowledgement of receipt is mailed or delivered to the sender.” N.Y.C.P.L.R. § 312-a(b)(1). There are two defects in Buggs’ attempted post-transfer service on Ehrnschwender. First, and perhaps surprisingly, there is New York caselaw stating that the use of certified instead of first class mail voids the service. See Miron" }, { "docid": "12708580", "title": "", "text": "any other indebted to said defendant, or who may have any of the effects of said defendant in his hands, HEREIN FAIL NOT. “Plaintiff expects to recover of or from the Defendant THRELKELD, the sum of $8,513.42 plus interest from 12/30/60, plus $1,000.00 attorney’s fees, plus $89.-04. “WITNESS, JOSEPH I. BOGART, Clerk of said Court in and for the Southern District of Florida, Miami Division, and the Seal of said Court at the Fed eral Building, in the City of Miami, aforesaid on this 4 day of November 1963. (SEAL) JOSEPH I. BOGART JOSEPH I. BOGART, Clerk United States District Court By S/ Michael Oswald D.C.” . The record does not indicate whether the Clerk or Appellant delivered the writ to the sheriff. Rule 4(a) requires the Clerk upon the commencement of an action to deliver the summons to the marshal or to a person specially appointed to serve it. The Florida statutes, however, do not indicate how any type of process requiring personal service is to be put in the hands of the server. But see Author’s Comment to Fla.R.Civ.P. 1.3, 30 Fla.Stat.Ann. 21: “The normal practice is for counsel to see that the summons gets into the hands of the proper sherjff * * * \" . The sheriff’s return recites that the writ was executed “by delivering three true copies of this writ * * * to J. Edwin Larson, State Treasurer of the State of Florida, and ex-officio Insurance Commissioner * * * for and on behalf of * * * St. Paul Mercury Insurance Company such service being made under and by virtue of authority of Section 624.-0222, Florida Statutes, 1959 [F.S.A.]” . See note 3, supra. . Although Fla.Stat.Ann. § 77.05 provides that “[t]he writ [of garnishment] shall be served in the same manner as service of summons,” there is only one way in which summons may be served upon an insurance company in Florida. This is not obvious upon first glance at the Florida statutes. Section 47.17 sets out the method for personal service on corporations, domestic and foreign, and provides that this" }, { "docid": "21234037", "title": "", "text": "of that state. There is no need to discuss service under a statute of the United States since the unavailability of 28 U.S.C. § 1694, the only relevant statute, has been fully explored by the Court. Hence, the Court turns its attention to the New York statute providing for service on a corporation. It should be noted that although there may have been several methods available to plaintiff under New York law in an attempt to validly serve Auburn, the only method attempted was personal service on Bruckenthal in New York City. In 1960, the applicable New York statute providing for personal service of a summons, within the state, upon a domestic corporation, was the New York Civil Practice Act, § 228. This statute provided, in pertinent part: Personal service of the summons upon a domestic corporation must be made by delivering a copy thereof, within the state, as follows: 8. In any other ease, to the president or other head of the corporation, the vice-president of the cor poration, the secretary, or assistant secretary, or clerk to the corporation, the cashier, an assistant cashier, the treasurer or assistant treasurer or a director or managing agent. An examination of the agreement between Auburn and Drake, the various affidavits that have been submitted and the testimony taken at the hearing on November 23, 1965, conclusively demonstrates that R. C. Bruckenthal falls within none of the categories of Civil Practice Act, § 228. Bruckenthal was neither an officer nor a director of Auburn. Neither has he been shown to be Auburn’s managing agent. Since service was invalid under Civil Practice Act, § 228, it was also invalid under Rule 4(d) (7) of the Federal Rules of Civil Procedure. Accordingly, since jurisdiction over the person of defendant Auburn was never acquired by service of the summons and complaint in accordance with the requirements of Rule 4(d) and, furthermore, since 28 U.S.C. § 1694 was not available as a proper method of service, the Court concludes that no jurisdiction was ever acquired over Auburn by reason of the marshal’s service of November 9, 1960" }, { "docid": "19016400", "title": "", "text": "jurisdiction therefore does not exist. Finally, defendant contends that it has a meritorious defense to plaintiff’s claim of breach of contract. Accordingly, defendant asks that the Court issue an order staying the enforcement of the writ of execution and vacating the second default. Discussion A. Personal Jurisdiction Defendant argues that plaintiff failed properly to serve it with the summons and complaint in this action. Federal Rule of Civil Procedure 4 provides the requirements for proper service of process. Defendant contends that by serving the summons and complaint upon its dispatcher, plaintiff failed to comply with Rule 4 which provides in pertinent part as follows: (d) Summons and Complaint: Person to be Served The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows: (3) Upon a domestic or foreign corporation ... by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendants. In addition, pursuant to California law, service of process upon a corporation may be accomplished by delivering a copy of the summons and complaint “to the president or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a general manager, or a person authorized by the corporation to receive service of process.” Cal.Civ.Procedure Code § 416.10(b). Defendant submits that service on the dispatcher was improper under both Rule 4 and the California Civil Procedure Code, because the dispatcher had no authorization to receive service of process. Defendant argues that the requirements of Rule 4 should be strictly construed absent waiver. See Grammenos v. Lemos, 457 F.2d 1067, 1070 (2d Cir.1972). Although defendant does admit that some courts in the Second Circuit have not required strict compliance with Rule 4, it argues that “even those" }, { "docid": "19016401", "title": "", "text": "or law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendants. In addition, pursuant to California law, service of process upon a corporation may be accomplished by delivering a copy of the summons and complaint “to the president or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a general manager, or a person authorized by the corporation to receive service of process.” Cal.Civ.Procedure Code § 416.10(b). Defendant submits that service on the dispatcher was improper under both Rule 4 and the California Civil Procedure Code, because the dispatcher had no authorization to receive service of process. Defendant argues that the requirements of Rule 4 should be strictly construed absent waiver. See Grammenos v. Lemos, 457 F.2d 1067, 1070 (2d Cir.1972). Although defendant does admit that some courts in the Second Circuit have not required strict compliance with Rule 4, it argues that “even those courts have required substantial compliance with the rule. Service must be made upon a representative so integrated with the company that he will know what to do with the papers.” (Defendant’s Mem. at 9 n. 3). Accordingly, since the dispatcher was without authority to receive service on defendant’s behalf, defendant argues that the Court lacks jurisdiction over defendant and the default judgments entered by the Court are void and unenforceable. The Second Circuit has taken the position that in pro se in forma pauperis actions “Rule 4 of the Federal Rules is to be construed liberally ‘to further the purpose of finding personal jurisdiction in cases in which the party has received actual notice.’ ” Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir.1986) (quoting Grammenos v. Lemos, 457 F.2d 1067,1070 (2d Cir.1972)). In addition Fed.R.Civ.P. 4(c)(2)(B)(i) permits an incarcerated pro se litigant proceeding in forma pauperis to rely on service by the U.S. Marshals. This has been the rule in other Circuits. See, e.g., Welch v. Folsom, 925 F.2d 666 (3rd Cir.1991); Puett" }, { "docid": "23597041", "title": "", "text": "authorizes a government organization to be served “in the manner prescribed by law of that state . upon any such defendant.” Mich. Comp.Laws Ann. § 600.1925 (1968), and its corollary court rule, Mich.Gen.Court Rule .105.6 (1973), provide that “[sjervice of process on public, municipal, quasi-municipal, or governmental corporations, unincorporated boards, or public bodies, may be made by leaving a summons and a copy of the complaint with “(2) the mayor, city clerk, or city attorney, in the case of cities; . “(8) the president, chairman, secretary, manager or clerk, in the case of any other public body organized or existing under the constitution or any law of this state, when by statute no other method of service is specially provided. “The service of process may be made on any officer having substantially the same duties as those named or described irrespective of their titles. In any case, service may be made by leaving a summons and a copy of the complaint with a person in charge of the office of any of the above-described officers upon whom service may be made . . . .” Service on the clerk’s office surely was sufficient service on the City through Mich. Comp.Laws Ann. § 600.1925(2), as supplemented by the provision that “service may be made by leaving a summons . with a person in charge of the office of any of the above-described officers upon whom service may be made.” Though section 600.1925(2) refers to service “in the case of cities,” and though none of the few reported Michigan cases construing section 600.-1925 have considered the applicability of 600.1925(2) to city councils or city plan commissions, we consider the service also sufficient on the city council, as such, as the City’s legislative body. Despite federal and Michigan courts’ demand for compliance with Fed.R.Civ.P. 4(d)(6) and with Mich.Comp.Laws Ann. § 600.1925, see Mendoza, supra, United States Steel, supra, Brooke v. Brooke, 272 Mich. 627, 262 N.W. 426 (1935), service was arguably sufficient on the city plan commission. Thus, the district court may determine that the plan commission was properly present unless, on remand," }, { "docid": "3100472", "title": "", "text": "in the State.” While no case construing this section of the Florida statutes has been cited to us, nor have we found one, cases construing other service of process statutes are useful. Several sections of the Florida service of process statutes require that the agent served be “transacting business for it in this state.” The Florida courts have held that this language requires that before service is valid the cause of action sued upon must have arisen out of business transacted in Florida. Illinois Central R. R. v. Simari, Fla. 1966, 191 So.2d 427 (F.S. § 47.17(5) and F.S. § 47.171); Giannini Controls Corporation v. Eubanks, Fla.1966, 190 So.2d 171 (F.S. § 47.16); Zirin Enterprises v. Charles Pfizer & Co., Fla.1961, 128 So.2d 594 (F.S. § 47.171). Appellee argues that these cases are controlling. However, other Florida service of process statutes do not contain this limiting language. Sections 47.17(l)-(4), F.S.A. fall into this category. These sections provide for service upon certain named corporate officials in descending order of management responsibility. Section 47.17(4), F.S.A., with which we are here concerned, allows service to be made on a resident business agent if none of the corporate officials named in the preceding sections are present in the state. If there is no resident agent or other officer present, section 47.17(5) with its limiting language, discussed supra, comes into play, and allows service on any agent transacting business in the state. In H. Bell & Associates, Inc. v. Keasbey & Mat-tison Co., Fla.App.1962, 140 So.2d 125, the court considered the question of the validity vel non of service on the president of a foreign corporation under section 47.17(1). In a carefully reasoned opinion the court held the service valid even though the cause of action did not arise out of business transacted in the state. We are convinced that the rationale of Bell is controlling here. After distinguishing Zirin Enterprises v. Charles Pfizer & Co., supra, the court in Bell stated: Under the rules of statutory construction, by the failure to include the conditional limitation on each subsection, it was apparently not the intention" }, { "docid": "3100471", "title": "", "text": "finding that these contacts, of a substantial and permanent nature, are sufficient to meet the minimum contacts test of due process under the Fourteenth Amendment. Compare Phillips v. Hooker Chemical Corp., 5 Cir., 1967, 375 F.2d 189. Therefore, it is necessary to determine whether the appellees are amenable to process under the applicable Florida statute. Put another way, is it necessary to effect valid service under the facts of this case that the cause of action arise out of the corporation’s activities within the state? In determining the validity vel non of service of process on a foreign corporation, the court must, in each instance, consider the particular facts of the case sub judiee and apply to these facts the law of the forum state. E. g., Tetco Metal Products, Inc. v. Langham, 5 Cir. 1968, 387 F.2d 721. In the instant case service of process was made under section 47.17(4), F.S.A. That section provides: “Process against any corporation, domestic or foreign, may be served * * * upon any officer or business agent, resident in the State.” While no case construing this section of the Florida statutes has been cited to us, nor have we found one, cases construing other service of process statutes are useful. Several sections of the Florida service of process statutes require that the agent served be “transacting business for it in this state.” The Florida courts have held that this language requires that before service is valid the cause of action sued upon must have arisen out of business transacted in Florida. Illinois Central R. R. v. Simari, Fla. 1966, 191 So.2d 427 (F.S. § 47.17(5) and F.S. § 47.171); Giannini Controls Corporation v. Eubanks, Fla.1966, 190 So.2d 171 (F.S. § 47.16); Zirin Enterprises v. Charles Pfizer & Co., Fla.1961, 128 So.2d 594 (F.S. § 47.171). Appellee argues that these cases are controlling. However, other Florida service of process statutes do not contain this limiting language. Sections 47.17(l)-(4), F.S.A. fall into this category. These sections provide for service upon certain named corporate officials in descending order of management responsibility. Section 47.17(4), F.S.A., with which" }, { "docid": "12708572", "title": "", "text": "personal delivery to the Secretary of State is contrary to the very nature of substituted service which rather than being personal service is a substitute therefor. It follows that when the Legislature established a method of substituted service it did not intend to require personal delivery of the summons to the Secretary of State.” Though there are non-Florida judicial pronouncements to the contrary, the decisions dispensing with the necessity for personal service upon the state official-statutory agent are in harmony with many other decisions of Florida courts which stress that substance rather than form is to determine the validity of substituted service of process. Although the Florida courts appear to require strict and substantial compliance with the statutory provisions for substituted service, 25 Fla.Jur. Process § 23, several cases indicate that as long as the statutory steps essential to providing reasonable probability of notice have been taken, minor deviations from the technical requirements of the statutes do not invalidate the service. In Cherry v. Heffernan, 1938, 132 Fla. 386, 182 So. 427, service was made upon the Secretary of State pursuant to the nonresident motorist statute, and the Secretary of State forwarded a copy of the process by registered mail to the nonresident defendant. The Post Office, however, returned this letter marked “Refused,” and the defendant contended that the service was deficient in absence of a signed return receipt. The Court quickly disposed of this contention: “ * * * [Sjtatutes providing for * * * substituted service on nonresidents are in derogation of common rights and must be strictly construed. * * * the steps required to be taken must be substantially complied with. It was never contemplated, however, that a nonresident could employ the terms of the act to defeat its purpose. “The purpose of the act was to give the classes named therein notice of any action brought against them that they might submit themselves to the jurisdiction of the court and offer such defense as they may be advised. It is shown here that the terms of the act in so far as giving notice was" } ]

[ { "docid": "2486806", "title": "", "text": "dismissal,” and such a dismissal is subject to de novo review.). II. RICO contains a civil enforcement scheme that permits private individuals harmed by criminal RICO activity to recover civil damages. The Act provides as follows: Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee. 18 U.S.C. § 1964(c). This provision confers standing on any individual who has experienced injury to his or her business or property that occurred “by reason of” a RICO violation. At issue in this appeal is wheth er Bowman’s alleged injuries resulted from a RICO violation such that he has standing to bring a suit for civil damages against his employer. III. Although this court has not before been presented with this issue, the circuit courts that have are in agreement that an employee discharged for criticizing or refusing to participate in the employer’s racketeering activity lacks standing to bring a civil suit when the underlying violation is based on section 1962(a)-(c) of RICO. See Kramer v. Bachan Aerospace Corp., 912 F.2d 151 (6th Cir.1990) (Because his injuries were a result of being fired, not of RICO violation, plaintiff discharged after reporting employer’s RICO scheme lacked standing to bring suit.); Reddy v. Litton Industries, Inc., 912 F.2d 291 (9th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 332, 116 L.Ed.2d 272 (1991) (Employee discharged for refusing to participate in cover-up of illegal scheme lacked standing to recover under § 1962(a) and (c).); O’Malley v. O’Neill, 887 F.2d 1557 (11th Cir.1989), cert. denied, 496 U.S. 926, 110 S.Ct. 2620, 110 L.Ed.2d 641 (1990) (Plaintiffs lacked standing to bring civil RICO action because their injuries were caused by the decision to fire them, not by RICO activity.); Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162 (3d Cir.1989) (Plaintiff discharged to prevent her from reporting fraudulent scheme lacked standing to pursue civil RICO suit for alleged violations of" } ]

[ { "docid": "15259840", "title": "", "text": "of racketeering activity.... In addition, the plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.” Sedima, 473 U.S. at 496, 105 S.Ct. at 3285 (footnote omitted). According to 18 U.S.C. § 1961(5), a pattern of racketeering activity requires at least two predicate acts of racketeering activity, the last of which occurred within ten years of a predicate act previously committed by the defendant enterprise. Section 1961(1) enumerates the federal and state criminal offenses that may constitute a predicate act of racketeering activity. This multi-act, pattern requirement distinguishes a RICO action from an antitrust violation. No pattern requirement is contained in the Clayton Act and accrual does not depend on the occurrence of an act or acts subsequent to the initial wrongful act. Further distinguishing RICO from the antitrust laws is the nature of the harms the racketeering statute is designed to prevent. “Unlike the Clayton Act, which targets harm to competition induced by force rather than fraud, racketeering injuries by definition include harms from fraud (securities, wire or mail fraud) and harms resulting from force {e.g., extortion).” Humes, RICO and a Uniform Rule of Accrual, 99 Yale L.J. 1399, 1407 (1990). In fraud-based actions, it is well-settled under federal law that the statute of limitations starts running when the plaintiff discovers (or reasonably should have discovered) the underlying facts relevant to his claim. See Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743 (1946). We therefore are inclined to think that the nature of the conduct proscribed by RICO compels the application of discovery principles in fashioning an accrual rule. Because accrual in antitrust actions depends on the commission of the defendant’s injurious act rather than on the plaintiff’s knowledge of that act or the resulting injury, Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 338, 91 S.Ct. 795, 806, 28 L.Ed.2d 77 (1971), the Clayton Act statute of limitations may lapse before the plaintiff becomes aware .that he has a cause of action. In" }, { "docid": "14841668", "title": "", "text": "Count II purports to state a cause of action under the civil remedies provision of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964(c): (c) Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. Plaintiffs predicate their Section 1964(c) suit on an alleged violation of Section 1962(c): (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. Each defendant (1) is said to be a “person” (Section 1961(3)) associated with an “enterprise” in fact (Section 1961(1)) comprising all the defendants and (2) has conducted the affairs of that enterprise through a “pattern of racketeering activity” (Section 1961(5)). That “racketeering activity” includes alleged acts of securities fraud (Section 1961(1)(D)) and mail fraud (Section 1961(1)(B)). Defendants attack those allegations as failing to assert injury “by reason of a violation of section 1962” (emphasis added), as Section 1964(c) requires. This Court has never given the underscored phrase the added (not merely causative) content ascribed to it by many judges in high places (see, e.g., Bankers Trust Co. v. Rhoades, 741 F.2d 511, 516-18 (2d Cir.1984)). And now the issue is plainly settled in our Circuit, Haroco, Inc. v. American National Bank & Trust Co., 747 F.2d 384 at 398 (7th Cir.1984): We conclude that a civil RICO plaintiff need not allege or prove injury beyond any injury to business or property resulting from the underlying acts of racketeering. * * * * * * This holding by no means renders superfluous the requirement in section 1964(c) that the plaintiff be injured “by reason of” a violation of section 1962. As we read this “by reason of” language, it simply" }, { "docid": "203671", "title": "", "text": "one of a number of predicate offenses, including wire and mail fraud. 18 U.S.C. § 1961(1) (1988). A “pattern” is (loosely) defined as “at least two acts of racketeering activity ... the last of which occurred within ten years ... after the commission of a prior act of racketeering activity.” 18 U.S.C. § 1961(5) (1988). Finally, section 1964 provides a civil remedy for RICO violations: “any person injured in his business or property by reason of a violation of section 1962 ... may sue therefor ... and shall recover threefold the damages he sustains and ... a reasonable attorney’s fee.” 18 U.S.C. § 1964 (1988). The elements of a civil RICO claim, then, are 1) a violation of the RICO statute, including proof that the defendant has participated in a pattern of racketeering, and 2) an injury to business or property. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 481-83, 105 S.Ct. 3275, 3277-78, 87 L.Ed.2d 346 (1985); and Haroco, Inc. v. American Nat. Bank & Trust Co., 747 F.2d 384, 386-87 (7th Cir.1984), aff'd, 473 U.S. 606, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985) (per curiam); see also Holmes v. Securities Investor Protection Corp., — U.S. -, -, 112 S.Ct. 1311, 1316-18, 117 L.Ed.2d 532 (1992) (RICO violation must be proximate cause of injury). In this case, the investors allege that Miller, Jocheim and Strata conducted the affairs of Strata/Quest (the joint venture) through a pattern of racketeering activity in violation of section 1962(c). The pattern parallels the securities fraud allegations: the investors say that they were fraudulently induced to invest in wells by false promises that they would be sharing equally in the revenues and expenses associated with the project. The main difference between the 10(b) claim and the RICO claim is that the newsletters are alleged to be acts of mail fraud, and part of the cause of action, rather than reason to toll the statute of limitations. A. Accrual The investors urged the district court to follow the “last predicate act” rule. Under this rule, espoused primarily by the Third Circuit, Keystone Ins. Co. v." }, { "docid": "18743342", "title": "", "text": "provisions of civil RICO should be limited to the redress of “competitive injury” or “an injury to competition,” id. at 1241. Because Bankers’s complaint alleged only injury that was “a direct consequence of the predicate acts,” and not a “distinct RICO injury,” the district court dismissed the complaint. Id. at 1242. This appeal followed. II. DISCUSSION RICO’s provision for a private treble damage right of action reads as follows: (c) Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue. therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. 18 U.S.C. § 1964(c). Section 1962 makes it unlawful, inter alia, (1) to invest income derived from a pattern of racketeering activity in any enterprise that is engaged in interstate commerce, § 1962(a); (2) to acquire or maintain control of such an enterprise through a pattern of racketeering activity, § 1962(b); (3) to participate in the conduct of such an enterprise’s affairs through a pattern of racketeering activity, § 1962(c); or (4) to conspire to do any of the above, § 1962(d). “[Enterprise” is defined to “include[] any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). “[Racketeering activity” is defined as an act or threat involving any of a number of specified felonies chargeable under state law or indictable under specified federal statutes (collectively “predicate acts”); bankruptcy fraud and bribery are included. § 1961(1). A “pattern of racketeering activity” is defined to “require[ ] at least two acts of racketeering activity” within a ten-year period. § 1961(5). The focus of the present appeal is the meaning of § 1964(c)’s phrase “person injured in his business or property by reason of a violation of section 1962.” The phrase comprises three elements: injury to the plaintiff, causation of that injury, and the conduct that caused the injury. The first two elements present no problem in" }, { "docid": "22322977", "title": "", "text": "did not allege that they had suffered any injury by reason of a RICO violation in addition to the injuries caused by the alleged mail fraud. -The district court held “that a plaintiff’s injury to be cognizable under RICO must be, caused by a RICO violation and not simply by the commission of predicate offenses, such as acts of mail fraud.” Haroco, Inc. v. American National Bank & Trust Co., 577 F.Supp. 111, 114 (N.D.Ill.1983). The district court therefore dismissed plaintiffs’ RICO claims without reaching defendants’ other arguments. Because there was no other ground for federal jurisdiction, the district court also dismissed the remaining pendent state law claims. II Before proceeding to the specific issues raised on this appeal, we must first sketch RICO’s broad civil provisions. This court recently said that the civil RICO provisions are “constructed on the model of a treasure hunt.” Sutliff, Inc. v. Donovan Companies, 727 F.2d 648, 652 (7th Cir.1984). We begin the hunt with 18 U.S.C. § 1964(c), which provides the private cause of action: Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. The next step is to examine section 1962, which describes the prohibited conduct. In this case, the most relevant portion of the section provides: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. 18 U.S.C. § 1962(c). We must next turn to section 1961, which provides special statutory definitions for the key terms of section 1962(c). “Racketeering activity” is defined in section 1961(1) in terms of a long list of state and federal crimes, including mail fraud, 18 U.S.C. § 1341. A person commits mail fraud by using" }, { "docid": "21583209", "title": "", "text": "supervisors and others, to no avail, and also refused to participate in such activities. As a result, he was fired on June 29, 1984. Burdick then brought this action seeking treble damages pursuant to section 1964(c), claiming that he was discharged “as a result of” his complaints about Shearson’s illegal activities, and in order for Shearson to acquire his valuable client base. Bur-dick alleged that Shearson violated 18 U.S.C. § 1962(c) (1982) through a pattern of mail fraud and securities fraud. Defendant moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) and 9(b). As noted earlier, the district court granted defendant’s motion, holding that plaintiff was not injured “by reason of” Shearson’s alleged mail and securities fraud within the meaning of the section 1964(c), and there fore had no standing to bring a civil RICO suit. Plaintiff makes two claims on this appeal. First, he contends that the district court erred in concluding that a plaintiff in a civil RICO action must allege that he was injured by reason of predicate acts that were directed at him as opposed to others. Second, plaintiff argues that his discharge and loss of his client base were sufficiently related to the predicate acts to confer standing. These claims are without merit. The statute here in issue, 18 U.S. C. § 1964(c) (1982), provides as follows: Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. Id. In Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), the Supreme Court concluded that a “plaintiff only has standing [under § 1964(c) ] if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.” Id. at 496, 105 S.Ct. at 3285. That is, “the compensable injury necessarily is the harm caused by predicate acts sufficiently related to constitute a" }, { "docid": "23257923", "title": "", "text": "record.” Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222 (4th Cir.2002). Perhaps anticipating our conclusion in Part V.A., Trigon has argued in the alternative that we should affirm the 12(b)(6) dismissal of the RICO claim because American Chiropractic has failed to state a claim under RICO. RICO provides, in pertinent part, that “[i]t shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity ... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income ... [in] the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.” 18 U.S.C.A. § 1962(a). “Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue ... and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.” 18 U.S.C.A. § 1964(c). A plaintiff bringing a civil RICO action under § 1964(c) must adequately plead at least two predicate acts of racketeering that form a “pattern of racketeering.” 18 U.S.C.A. § 1961(5). Private civil RICO suits may be brought regardless of whether the government chooses to prosecute the criminal RICO violation. Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 493, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). Here, American Chiropractic’s complaint stated that Trigon committed mail fraud, wire fraud, and extortion. All three qualify as “racketeering activity,” see 18 U.S.C.A. § 1961(1), but Trigon contends that American Chiropractic cannot state a claim for any of those predicate acts. We consider first the alleged mail and wire fraud. The federal mail and wire fraud statutes prohibit the use of the mails or interstate wires in furtherance of schemes to defraud. 18 U.S.C.A. §§ 1341, 1343 (West 2000). For the government to obtain a conviction for mail or wire fraud it must prove (1) a scheme disclosing an intent to defraud; and (2) the use, respectively, of the mails or interstate wires in furtherance of the scheme." }, { "docid": "21859061", "title": "", "text": "to illustrate the point, briefly review the elements of the cause of action and their application to this case. Section 1962 of RICO is violated by any person associated with an enterprise, the activities of which affect commerce, who conducts the enterprise’s affairs through a pattern of racketeering activity. 18 U.S.C. § 1962(a)-(d). An “enterprise” includes “any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). Defendant’s business, the True Car Wash, therefore qualifies as an enterprise under RICO. Mail fraud qualifies as a racketeering activity under the statute, 18 U.S.C. § 1961(1), and mailing fraudulent state sales tax returns qualifies as mail fraud. United States v. Mirabile, 503 F.2d 1065, 1066-67 (8th Cir.1974). See also United States v. Flaxman, 495 F.2d 344, 349 (7th Cir.1974). A “pattern” of racketeering activity, as required by section 1962(c), requires at least two acts of racketeering activity within a ten year period. 18 U.S.C. § 1961(5). Because the statute defines “racketeering activity” to include mail fraud, the defendant’s mailing of nine fraudulent tax returns to the Illinois Department of Revenue over a nine month period constitutes a pattern of racketeering activity as defined in the statute. United States v. Weatherspoon, 581 F.2d 595, 602 (7th Cir.1978) (each mailing in a scheme to defraud is a separate offense so that several separate acts of mail fraud constitute a pattern of racketeering activity). Ill The Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., provides a civil remedy for private parties injured by á RICO violation: Any person injured in his' business or property by reason of a violation of section 1962 of this Chapter may sue therefore in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. 18 U.S.C. § 1964(c). A RICO plaintiff must allege injury “to business or property.” 18 U.S.C. § 1964(c). This court has held that the plain language of the statute dictates" }, { "docid": "6685916", "title": "", "text": "or group of individuals associated in fact although not a legal entity.” Included in the lengthy list of predicate acts which may be “racketeering activity” are mail fraud, wire fraud and securities fraud, activities which plaintiffs allege are the predicate acts here. 18 U.S.C. § 1961(1). Under § 1961(5), a “pattern of racketeering activity” “requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity.” Although it is primarily a criminal statute, RICO provides for a private right of action for a civil remedy: Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. 18 U.S.C. § 1964(c). Plaintiffs allege that they were injured by defendants’ RICO violations. (Am.Compl. at ¶ 404.) The Third Circuit has held that to state a claim under § 1962(c), a plaintiff must allege the following four elements: (a) the existence of an enterprise affecting interstate commerce; (b) that the defendant was employed by or associated with the enterprise; (c) that the defendant participated, either directly or indirectly, in the conduct or the affairs of the enterprise; and (d) that he or she participated through a pattern of racketeering activity that must include the allegation of at least two racketeering acts. Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1165 (3d Cir.1989). Defendants assert that plaintiffs fail to satisfy these § 1962(c) pleading requirements. As discussed infra, it is clear that plaintiffs fail to allege a valid RICO enterprise in the Amended Complaint and that such a failure would warrant dismissal of the Amended Complaint’s RICO count. In their opposing brief, however, plaintiffs attempt to replead their RICO enterprise theory. (Plaintiffs’ new RICO theory will be referred to hereinafter as the “Revised RICO Allegations”)" }, { "docid": "203670", "title": "", "text": "finding no material dispute that the investors should have discovered the alleged fraud in October 1984, we affirm the dismissal of the investors’ securities fraud claim. III. Now we turn to the RICO claim. The parties agree that a four-year statute of limitations applies. Further, they agree that federal tolling principles apply. Fortunately, there are no recent developments in the law that cause us to question either assumption. The parties still disagree about the application of the tolling rules, but this dispute pales in comparison to the argument over when the period of limitations begins to run. The Supreme Court has reserved judgment on that question, Agency Holding, 483 U.S. at 156-57, 107 S.Ct. at 2767, which has divided the circuits and the district courts in this circuit. Before discussing an appropriate accrual rule, however, we briefly summarize the relevant portions of RICO. In a variety of ways, RICO penalizes people who associate with or operate “enterprises” by means of a “pattern of racketeering activity.” 18 U.S.C. § 1962(a)-(d) (1988)'. “Racketeering” is defined as any one of a number of predicate offenses, including wire and mail fraud. 18 U.S.C. § 1961(1) (1988). A “pattern” is (loosely) defined as “at least two acts of racketeering activity ... the last of which occurred within ten years ... after the commission of a prior act of racketeering activity.” 18 U.S.C. § 1961(5) (1988). Finally, section 1964 provides a civil remedy for RICO violations: “any person injured in his business or property by reason of a violation of section 1962 ... may sue therefor ... and shall recover threefold the damages he sustains and ... a reasonable attorney’s fee.” 18 U.S.C. § 1964 (1988). The elements of a civil RICO claim, then, are 1) a violation of the RICO statute, including proof that the defendant has participated in a pattern of racketeering, and 2) an injury to business or property. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 481-83, 105 S.Ct. 3275, 3277-78, 87 L.Ed.2d 346 (1985); and Haroco, Inc. v. American Nat. Bank & Trust Co., 747 F.2d 384, 386-87 (7th Cir.1984)," }, { "docid": "11719926", "title": "", "text": "through a pattern of racketeering activity or collection of an unlawful debt. To plead a violation of § 1962(c) a plaintiff must allege “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co. 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985) (footnote omitted). Section 1964(c) of RICO allows for civil enforcement of its provisions: Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefore in an appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. Defendants argue that Galerie Fursten-berg does not have standing to sue under RICO. In addition, defendants contend that Galerie Furstenberg has failed to satisfy this circuit’s pleading requirements of a RICO enterprise and has failed to allege with particularity the mail and wire fraud predicate act violations. A. Standing Defendants argue that the requirement that “the racketeering activities injure the plaintiff in his business or property,” Sedima, 473 U.S. at 495, 105 S.Ct. at 3284, precludes Galerie Furstenberg’s RICO claim. “Unless plaintiff can demonstrate that it has been injured by the predicate acts of mail and wire fraud, which constitute the alleged pattern of racketeering activity [distributing, advertising, offering for sale, and selling counterfeit artwork], it cannot recover under RICO.” (Defendants’ Memorandum, p. 10) They urge that those who bought the counterfeit artwork are the only possible victims of the mail and wire fraud violations. A recent decision of the Second Circuit, Sperber v. Boesky, 849 F.2d 60 (2d Cir. 1988), suggests otherwise. In Sperber the court addressed the question “to what extent are damages caused only indirectly by the predicate acts recoverable? (By damages caused only ‘indirectly,’ we mean ‘racketeering’ injury, ‘competitive’ injury or injury caused by the total effect of the pattern of racketeering in the enterprise.)” Id. at 63. In answering this question the court looked to Justice Marshall’s examples, in his Sedima dissent, of plaintiffs who could recover: the targets of" }, { "docid": "23141005", "title": "", "text": "in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. The complaint alleges that defendants violated §§ 1962(c) and (d) which provide: (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section. Restating the banks’ factual allegations within RICO’s definitional framework, they allege that defendants were “persons” employed by or associated with International Horizons, an “enterprise” engaged in interstate and foreign commerce and that the banks suffered injury as a result of defendants’ direct or indirect participation in the conduct of International Horizons’ affairs through a “pattern of racketeering activity\" (i.e., two or more acts of mail fraud and wire, fraud). The district court dismissed the action, relying on its earlier decision in Morosani v. First National Bank of Atlanta, 581 F.Supp. 945 (N.D.Ga.1984) and held that to state a claim under § 1964(c) a plaintiff must allege an injury resulting from the “social harm” that the RICO statute sought to address and the injury must “link up” with a recognized purpose served by the statute. The district court explained that there were two settings in which a civil cause of action under RICO could arise. In the first factual setting the racketeer/defendant manipulates the affairs of the enterprise by committing multiple criminal acts, i.e., a pattern of racketeering injury, that have primary impact on the enterprise and collateral impact (adverse economic impact) on others. The social harm seen by the court is collateral economic harm flowing from unlawful manipulation of the enterprise’s affairs. In the second class" }, { "docid": "23402359", "title": "", "text": "use, conducted through mail fraud, wire fraud and use of facilities of interstate commerce, constituted the requisite injury to their \"business or property.\" They also argue that there was a sufficiently \"direct\" relationship between the injury (damage to business reputation) and the RICO predicate acts (mail fraud, wire fraud, use of facilities of inter-commerce). Appellants also argue that it was irrelevant, for purposes of RICO standing, that they were not the objects or targets of the racketeering activity. We disagree and hold the district court did not err in dismissing appellants' civil RICO substantive and conspiracy claims for lack of standing. The civil enforcement provision of RICO provides that \"[a]ny person injured in his [or her] business or property by reason of a violation of section 1962 may sue therefor in any appropriate United States district court and shall recover threefold the damages . . . and the cost of the suit, including a reasonable attorney's fee.\" 18 U.S.C. § 1964(c). Section 1962 has three substantive provisions (18 U.S.C. § 1962(a), (b), (c)) and one conspiracy provision (18 U.S.C. § 1962(d)). \"[A RICO] plaintiff only has standing if, and can only recover to the extent that, he [or she] has been injured in his [or her] business or property by the conduct constituting the violation.\" Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 495-96, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (Sedima). Thus, the two requirements for RICO standing are (1) an injury to \"business or property\" (2) caused \"by reason of\" a RICO violation. Appellants did not satisfy either requirement. First, in examining the statutory language \"by reason of\" in § 1964(c), the Supreme Court held that, to have standing under RICO, the plaintiff must have been injured by conduct which constitutes racketeering activity, that is, RICO predicate acts, and not by other conduct of the defendant. See Sedima, 473 U.S. at 496-97, 105 S.Ct. 3275 citing Haroco, Inc. v. American National Bank & Trust Co., 747 F.2d 384, 398 (7th Cir.1984), aff'd, 473 U.S. 606, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985). This was because \"the compensable injury" }, { "docid": "10959397", "title": "", "text": "includes any act constituting one or more of a number of state crimes, including murder, kidnapping, and arson; and any act which is indictable under a number of provisions of the federal criminal code. Mail fraud, 18 U.S.C. § 1341, is a racketeering activity. So is wire fraud, 18 U.S.C. § 1341. The statute also includes within the definition of racketeering activity “any offense involving fraud ... in the sale of securities.” Section 1961(5) defines the term “pattern of racketeering activity.” This subsection provides that a “pattern of racketeering activity” requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity. In sum, then, any two acts of mail fraud committed within a ten year period constitute a pattern of racketeering activity, as does a single act of mail fraud and a single act of securities fraud within the same time span. In RICO’s special parlance, each of these particular crimes is known as a “predicate offense.” RICO provides for both criminal and civil enforcement. The criminal penalties are harsh. See 18 U.S.C. § 1963. Section 1964(c) creates the civil remedy, stating that: Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. In this case, Econo-Car claims that it was injured by reason of Agency’s, Frankino’s and Smith’s violations of § 1962. It also claims, as it must to state a cause of action under RICO, see Spencer Companies, Inc. v. Agency Rent-A-Car, Inc., Fed.Sec.L. Rep. (CCH) 98,361 (D.Mass.1981), that the defendants committed a number of racketeering acts. Specifically, the plaintiff alleges that the defendants committed several separate acts of securities fraud in connection with the filing of Schedules 13D and amendments thereto; that the defendants committed at least" }, { "docid": "21859062", "title": "", "text": "“racketeering activity” to include mail fraud, the defendant’s mailing of nine fraudulent tax returns to the Illinois Department of Revenue over a nine month period constitutes a pattern of racketeering activity as defined in the statute. United States v. Weatherspoon, 581 F.2d 595, 602 (7th Cir.1978) (each mailing in a scheme to defraud is a separate offense so that several separate acts of mail fraud constitute a pattern of racketeering activity). Ill The Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., provides a civil remedy for private parties injured by á RICO violation: Any person injured in his' business or property by reason of a violation of section 1962 of this Chapter may sue therefore in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. 18 U.S.C. § 1964(c). A RICO plaintiff must allege injury “to business or property.” 18 U.S.C. § 1964(c). This court has held that the plain language of the statute dictates that the injury requirement be construed broadly. Limitations on the type of injury, such as requiring a “racketeering injury,” have been rejected. Haroco v. American Nat’l Bank & Trust Co. of Chicago, 747 F.2d 384, 387 (7th Cir.1984). This court has repeatedly upheld civil RICO claims where the “only apparent injuries were those directly resulting from the predicate offenses.” Id. at 397. See, e.g., Sutliff, Inc. v. Donovan Companies, 727 F.2d 648, 653 (7th Cir.1984); Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1287-88 (7th Cir.1983). While the Supreme Court held that the “business and property” phrase in the Clayton Act refers only to commercial interests and competitive injuries, Hawaii v. Standard Oil Co. of California, 405 U.S. 251, 264, 92 S.Ct. 885, 892, 31 L.Ed.2d 184 (1972), this is not the case under RICO, see Schacht v. Brown, 711 F.2d 1343, 1357 (7th Cir.1983) (citing cases), although a few courts have attempted to draw such a line. See e.g., Van Schaik v. Church of Scientology of California, Inc., 535 F.Supp. 1125" }, { "docid": "18522240", "title": "", "text": "participating in a pattern of racketeering activity or from collecting an unlawful debt. See generally 18 U.S.C. § 1962. A pattern of racketeering activity is defined to encompass a wide range of acts which are indictable as crimes involving fraud, bribery, theft, embezzlement or extortion. See 18 U.S.C. § 1961(1). In this case, Plaintiffs allege that Defendants’ pattern of racketeering activity involved acts that are indictable under 18 U.S.C. §§ 1341 and 1343, relating to mail and wire fraud. The civil remedies provision of the federal RICO statute provides that “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.” 18 U.S.C. § 1964(c). Thus, the essential elements of a civil RICO claim are: (1) a violation of section 1962; (2) injury to business or property; and (3) a causal connection between the violation and the injury. Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir.1991). It is the third element on which Defendants primarily focus their motions to dismiss. Defendants present two main arguments with regard to causation. First, Defendants maintain that Plaintiffs have failed to demonstrate any detrimental reliance on the alleged misstatements made by Defendants in furtherance of their scheme to defraud. Second, Defendants assert that even if Plaintiffs have shown detrimental reliance, they still cannot establish the requisite causal connection between Defendants’ RICO violation and Plaintiffs’ injuries. The most recent United States Supreme Court authority on pleading and proving detrimental reliance in relation to a civil RICO claim is Bridge v. Phoenix Bond & Indem. Co., — U.S. -, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008), where the Court confronted the issue of whether first-party reliance was required to sustain a RICO claim predicated on mail fraud. In holding that it was not, the Court opined that first-party reliance was neither a required element of a civil RICO claim nor a prerequisite to establishing proximate cause. Id. at" }, { "docid": "14234151", "title": "", "text": "Atlas Pile Driving Co., 886 F.2d at 990. The parties here contest whether RICO was intended to include within its reach a law firm conducting normal legal business. As this court observed in De Wit, the reach of RICO beyond the activities of organized crime has caused courts some distress as well. De Wit, 879 F.Supp. at 961. However, the Supreme Court regarded the extensive reach of RICO as an indication of the breadth Congress intended the statute to have, not as a defect in its drafting. Id. The court will consider below whether this law firm nonetheless escapes RICO’s extensive reach. RICO contains a civil enforcement scheme permitting private individuals harmed by criminal RICO activity to recover damages in a civil action. Bowman v. Western Auto Supply Co., 985 F.2d 383, 384 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2459, 124 L.Ed.2d 674 (1993). The relevant provision of the Act is as follows: Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in ■ any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. 18 U.S.C. § 1964(c); Bowman, 985 F.2d at 384; Diamonds Plus, Inc. v. Kolber, 960 F.2d 765, 768 (8th Cir.1992) (“RICO provides a civil cause of action to those who are injured by activities violative of 18 U.S.C. § 1962 (1988).”). Under § 1964, then, any individual who has experienced injury to his or her. business or property “by reason of’ a RICO violation has standing to bring a private civil action. Bowman, 985 F.2d at 384. The litigant’s injury, however, must result from a violation of 18 U.S.C. § 1962. Sedima, 473 U.S. at 496-97, 105 S.Ct. at 3285; Bowman, 985 F.2d at 385. The court turns next to the elements of a viable RICO claim. b. Elements Of Plaintiff’s § 1962(c) RICO Claim The plaintiff here alleges that defendants have violated 18 U.S.C. § 1962(c), which is the provision of RICO that makes" }, { "docid": "7881195", "title": "", "text": "[Life Insurance Company of America] funds through a pattern of securities frauds to operate [other businesses], thereby draining] the assets of [Life Insurance Company of America]” and by the use of the mails to accomplish the scheme. After careful consideration of the defendants’ motions to dismiss, the intricate web of pleadings generated in this action, the plaintiff’s memorandum brief, and the developing law regarding RICO, this court finds that the Ninth and Tenth causes of action are due to be dismissed for failure to state a claim upon which relief may be granted under 18 U.S.C. § 1961 et seq. RICO provides for private civil remedies at 18 U.S.C. § 1964(c): Any person injured in his business or property by reason of a violation of section 1962 of the chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. Id. A violation of section 1962 includes (a) deriving income from a pattern of racketeering activity and investing any part of that income in an enterprise whose activities affect interstate commerce; (b) acquiring through a pattern of racketeering activity any interest or control in an enterprise whose activities affect interstate commerce; (c) conducting affairs of an enterprise whose affairs affect interstate commerce through a pattern of racketeering activity; and (d) conspiring to violate (a), (b) or (c). RICO defines a pattern of racketeering activity to require at least two acts of racketeering activity. 18 U.S.C. § 1961(5). Racketeering activity includes acts indictable under certain listed provisions of the United States Code, including mail fraud, 18 U.S.C. § 1341, and “any offense including fraud connected with a case under title 11, fraud in the sale of securities____” 18 U.S.C. § 1961(1) (emphasis supplied). Courts have construed the requirement that the predicate acts be indictable to mean that the allegations must provide the highest level of FRCP Rule 9(b) particularity — even beyond that required in the ordinary fraud case. E.g. Bache Halsey Stuart Shields, Inc. v. Tracy Collins Bank & Trust Co.," }, { "docid": "22673415", "title": "", "text": "Justice White delivered the opinion of the Court. The Racketeer Influenced and Corrupt Organizations Act (RICO), Pub. L. 91-452, Title IX, 84 Stat. 941, as amended, 18 U. S. C. §§ 1961-1968, provides a private civil action to recover treble damages for injury “by reason of a violation of” its substantive provisions. 18 U. S. C. § 1964(c). The initial dormancy of this provision and its recent greatly increased utilization are now familiar history. In response to what it perceived to be misuse of civil RICO by private plaintiffs, the court below construed § 1964(c) to permit private actions only against defendants who had been convicted on criminal charges, and only where there had occurred a “racketeering injury.” While we understand the court’s concern over the consequences of an unbridled reading of the statute, we reject both of its holdings. I-H RICO takes aim at “racketeering activity,” which it defines as any act “chargeable” under several generically described state criminal laws, any act “indictable” under numerous specific federal criminal provisions, including mail and wire fraud, and any “offense” involving bankruptcy or securities fraud or drug-related activities that is “punishable” under federal law. § 1961(1). Section 1962, entitled “Prohibited Activities,” outlaws the use of income derived from a “pattern of racketeering activity” to acquire an interest in or establish an enterprise engaged in or affecting interstate commerce; the acquisition or maintenance of any interest in an enterprise “through” a pattern of racketeering activity; conducting or participating in the conduct of an enterprise through a pattern of racketeering activity; and conspiring to violate any of these provisions. Congress provided criminal penalties of imprisonment, fines, and forfeiture for violation of these provisions. § 1963. In addition, it set out a far-reaching civil enforcement scheme, § 1964, including the following provision for private suits: “Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.” § 1964(c)." }, { "docid": "14234152", "title": "", "text": "may sue therefor in ■ any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee. 18 U.S.C. § 1964(c); Bowman, 985 F.2d at 384; Diamonds Plus, Inc. v. Kolber, 960 F.2d 765, 768 (8th Cir.1992) (“RICO provides a civil cause of action to those who are injured by activities violative of 18 U.S.C. § 1962 (1988).”). Under § 1964, then, any individual who has experienced injury to his or her. business or property “by reason of’ a RICO violation has standing to bring a private civil action. Bowman, 985 F.2d at 384. The litigant’s injury, however, must result from a violation of 18 U.S.C. § 1962. Sedima, 473 U.S. at 496-97, 105 S.Ct. at 3285; Bowman, 985 F.2d at 385. The court turns next to the elements of a viable RICO claim. b. Elements Of Plaintiff’s § 1962(c) RICO Claim The plaintiff here alleges that defendants have violated 18 U.S.C. § 1962(c), which is the provision of RICO that makes it •“unlawful for any person ... associated with an enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity. ...” 18 U.S.C. § 1962(c); Bowman, 985 F.2d at 384 n. 1; Diamonds Plus, Inc., 960 F.2d at 768; Atlas Pile Driving Co., 886 F.2d at 990. Thus, to establish a RICO violation under 18 U.S.C. § 1962(c) a plaintiff must demonstrate “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity that must include at least two racketeering acts.” Sedima, 473 U.S. at 496, 105 S.Ct. at 3285; United States v. Nabors, 45 F.3d 238, 239 (8th Cir.1995) (quoting Sedi-ma for the elements of the violation in a criminal RICO prosecution); Nolte v. Pearson, 994 F.2d 1311, 1316-17 (8th Cir.1993); Bowman, 985 F.2d at 385 (quoting Sedima); Terry A. Lambert Plumbing, Inc. v. Western Sec. Bank, 934 F.2d 976, 979 n. 4 (8th Cir.1991); Granite Falls Bank, 924" } ]

[ { "docid": "21273802", "title": "", "text": "trade-in vehicle to be reimbursed by the purchaser, and financed as part of the principal balance). There is no doubt that this is a cost incurred by the dealership, without which the transaction could not have occurred. However, it is not a cost contemplated by the UCC as one that is part of the purchase money obligation. See Tex. Bus. & Comm.Code § 9.103, Comment 3. The funds used to pay off the negative equity in the vehicle traded-in are neither part of the price of the collateral, nor are they value given by FMC that was actually used to enable the debtors to acquire rights in the collateral. These funds merely enabled the dealership to pay off the balance on the trade-in using the debtors’ credit. As a result, that part of the loan attributable to the negative equity from the debtors’ old vehicle is not part of the purchase money obligation as defined by section 9.103(a)(2) of the Texas Business and Commercial Code. How Does a Creditor Qualify for Protection Under § 1325(a)(*)? Now that we know that the “negative equity” portion of FMC’s loan to the debtors is not part of FMC’s purchase money security interest (ie., it is secured, but the security interest is not a PMSI within the meaning of section 9.103 of the UCC), we next need to determine how or whether FMC’s claim fits within the 910-day exception to the general rule that secured claims can be bifurcated in a chapter 13 plan. It is at this point that many courts begin to discuss whether a transformation rule or a dual status rule should apply to the creditor’s purchase money security interest. See, e.g., In re Westfall, 2007 WL 2777709 at *8 (supplementing its previous order, holding that the transformation rule is “too severe,” and allowing the debtor to treat only the non-purchase money portion of the creditor’s claim attributable to the payment of negative equity as an unsecured claim); Citifinancial Auto v. Hernandez-Simpson (In re Hernandez-Simpson), 369 B.R. 36 (D.Kan.2007) (holding that the dual status rule applies because the Kansas enactment of" } ]

[ { "docid": "6410428", "title": "", "text": "debtor’s student loans and roll that amount into a secured claim on the second vehicle. The only possible nexus is that the purpose of the first debt was to acquire a vehicle, and the second debt is also to acquire a vehicle. In sum, it is not clear that there is a close nexus between the negative equity payoff and the acquisition of the new vehicle. Pajot, 371 B.R. at 154. Accord Johnson, 380 B.R. at 247 (opining that “the financed negative equity is nothing more than a refinance of the pre-existing debt owed on the Trade-In.”); Hayes, 376 B.R. at 670 (“It is not every dollar loaned that becomes purchase-money obligation by relationship in time or circumstances to the financing of purchase-money collateral.”) (emphasis in original). This reasoning, which the Court finds compelling, shows that a broad construction of “expenses incurred in connection with acquiring rights in the collateral” — to encompass expenses that relate to altogether different collateral that pre-dat-ed the purchase of the new car — is inconsistent with the UCC. Comment 3 supports this position. It says that a security interest “does not qualify as a purchase-money security interest if a debtor acquires property on unsecured credit and subsequently creates the security interest to secure the purchase price.” Although that is not the situation here, the point is that an unsecured debt related to a prior transaction cannot be miraculously transformed into a purchase-money obligation solely by being enveloped in a later transaction. The court in Sanders succinctly summed this up: “One may borrow money to buy something (e.g., a new vehicle), and also borrow additional money for some other purpose (e.g., to pay off the balance of a loan for the trade-in vehicle). The part used to buy something is purchase money obligation. The part used for some other purpose is not.” Sanders, 377 B.R. at 852-53. The conclusion that negative equity is not secured by a PMSI has significant policy underpinnings. If a creditor could secure negative equity with a PMSI, it would not only receive the non-bifurcation advantage provided by 1325(a)(*) to the" }, { "docid": "11286433", "title": "", "text": "even though the security agreement also secured the price of other items.” Meyer, 50 Kan. L.Rev. at 155-56 & n. 64; Kan. Stat. Ann. § 84-9-103(f) (2007) (“[A] purchase-money security interest does not lose its status as such, even if: ... the purchase-money collateral also secures an obligation that is not a purchase-money obligation.”); see also Snap-On Tools, Inc. v. Freeman (In re Freeman), 956 F.2d 252, 254-55 (11th Cir.1992) (“A security interest in collateral is ‘purchase money’ to the extent that the item secures a debt for the money required to make the purchase. If an item of collateral secures some other type of debt, e.g., antecedent debt, it is not purchase money.”). These principles underscore that the benefits of PMSIs come with certain limitations. When Congress chose to use the state law term PMSI to confíne the scope of the hanging paragraph, it adopted these state law limitations as well and made them applicable in bankruptcy. B. The Kansas Definition of PMSI The majority identifies the key Kansas statutory language governing whether negative equity may be secured with a PMSI. As the majority states, “[t]he issue is whether paying off negative equity in a trade-in car is part of the ‘price’ of the new car or part of the ‘value given to enable’ acquisition of the new car.” Maj. Op. at 1284. I agree with the majority that under the Kansas U.C.C., these terms include more than just the vehicle’s sticker price. But I disagree with the majority’s broad interpretation of these terms. In my view, Comment 3 to U.C.C. § 9-103 provides the limiting framework. Notably absent from the items contained in Comment 3 is a description of negative equity. Instead, the comment lists items which are part of the “price” of a new car or the “value given to enable” the purchase of a new car. Granted, the list is nonexclusive and includes “other similar obligations.” But Comment 3 tells us that a PMSI “requires a close nexus between the acquisition of collateral and the secured obligation.” Under familiar principles of statutory interpretation, the other items" }, { "docid": "11286437", "title": "", "text": "than a refinancing of the preexisting debt owed on the trade-in. There is no necessary connection between this refinancing and the car’s acquisition.”). Unlike the other expenses listed in Comment 3, the amount (and even the existence) of negative equity depends upon circumstances completely unrelated to the price of the new vehicle and its financing or the costs associated with transfer of title. Indeed, negative equity differs vastly for each purchaser, depending in large part on the purchaser’s past choices. Thus, although the Fords and their dealer were free to use the new pickup as security for a loan to pay an antecedent debt, that does not mean paying the old debt was part of the “price” of the pickup. Nor does it mean the portion of a loan used to pay off the old debt was a purchase money security interest. As a Texas bankruptcy court stated: One may borrow money to buy something (e.g., a new vehicle), and also borrow additional money for some other purpose (e.g., to pay off the balance of a loan for the trade-in vehicle). The part used to buy something is purchase money obligation. The part used for some other purpose is not. In re Sanders, 377 B.R. 836, 853 (Bankr.W.D.Tex.2007), rev’d, 403 B.R. 435 (W.D.Tex.2009). In my view, this is a more consistent interpretation of the Kansas U.C.C. than the majority’s. By interpreting the term “price” in section 84-9-103(a)(2) to mean the actual price of the vehicle plus amounts akin to transaction costs, the limits of PMSIs are easily discernible. In contrast, allowing a creditor to create a PMSI for any money advanced at the same time as a sale enables the creditor to overload the PMSI and defeats the limitations imposed by state law. C. The Dual-Status Rule Because I would hold that Ford Credit does not have a PMSI securing its loan for the Fords’ negative equity, I must answer “the question of what to do with that portion of the debt not entitled to purchase-money status.” See In re Penrod, 392 B.R. at 838. As mentioned above, Kansas has" }, { "docid": "21517598", "title": "", "text": "in question is a PMSI. We therefore turn to Kansas law, specifically Revised Article 9 of the Uniform Commercial Code as adopted in Kansas, Kan. Stat. Ann. § 84-9-103 (2007 Supp.) where a PMSI is defined as a security interest securing the repayment of a “purchase money obligation.” A purchase money obligation is, in turn, defined as— (2) ... an obligation of an obligor incurred as all or part of the price of the collateral or for value given to enable the debtor to acquire rights in or the use of the collateral if the value is in fact so used. Purchase-money collateral is defined as “goods or software that secures a purchase-money obligation incurred with respect to that collateral.” Kan. Stat. Ann. § 84-9-103(b) provides that— A security interest in goods is a purchase-money security interest: (1) To the extent that the goods are purchase-money collateral with respect to that security interest.... In other words, to the extent that the collateral has been obtained with funds loaned for that purpose by the creditor, the transaction is a PMSI. The question then is whether that part of the loan paid to Central Star to cover the negative equity in the debtors’ trade-in vehicle was an obligation incurred as “part or all of the price” or “value given to enable” debtors to acquire the pickup truck. This Court cannot see how it can be deemed anything other than but “all or part of the price” of the pickup or a part of the value given to enable its purchase. A part of the consideration for the sale of the pickup truck to the debtors was the trade-in of their old vehicle. That trade-in was valueless because of the negative equity. In order for Rusty Eck to realize on the trade-in, either the debtors or Rusty Eck had to pay off the outstanding lien against it. As the Official UCC Comment states— [T]he ‘price’ of collateral or the ‘value given to enable’ includes obligations for expenses incurred in connection with acquiring rights in the collateral, sales taxes, duties, finance charges, interest, freight" }, { "docid": "11286436", "title": "", "text": "is instead simply “the cost of using the price mechanism.” R.H. Coase, The Nature of the Firm, 4 Economica 386, 390 (1937); see also Black’s Law Dictionary 372 (8th ed.2004) (defining “transaction cost” as “[a] cost connected with a process transaction, such as a broker’s commission, the time and effort expended to arrange a deal, or the cost involved in litigating a dispute”); Harold Demsetz, The Cost of Transacting, 82 Q.J. Econ. 33, 35 (1968) (“Transaction cost may be defined as the cost of exchanging ownership titles.”). Negative equity is different. It is not a transaction cost, but a transfer of money for value. Much like a home equity loan used to pay a preexisting credit card debt, the portion of the auto loan attributed to negative equity is not used for the purchase of some new piece of collateral or the costs inherent in the purchase. It is used for another purpose altogether. See Americredit Fin. Servs., Inc. v. Penrod (In re Penrod), 392 B.R. 835, 852 (9th Cir.BAP2008) (“[Negative equity is nothing more than a refinancing of the preexisting debt owed on the trade-in. There is no necessary connection between this refinancing and the car’s acquisition.”). Unlike the other expenses listed in Comment 3, the amount (and even the existence) of negative equity depends upon circumstances completely unrelated to the price of the new vehicle and its financing or the costs associated with transfer of title. Indeed, negative equity differs vastly for each purchaser, depending in large part on the purchaser’s past choices. Thus, although the Fords and their dealer were free to use the new pickup as security for a loan to pay an antecedent debt, that does not mean paying the old debt was part of the “price” of the pickup. Nor does it mean the portion of a loan used to pay off the old debt was a purchase money security interest. As a Texas bankruptcy court stated: One may borrow money to buy something (e.g., a new vehicle), and also borrow additional money for some other purpose (e.g., to pay off the balance of" }, { "docid": "6410429", "title": "", "text": "3 supports this position. It says that a security interest “does not qualify as a purchase-money security interest if a debtor acquires property on unsecured credit and subsequently creates the security interest to secure the purchase price.” Although that is not the situation here, the point is that an unsecured debt related to a prior transaction cannot be miraculously transformed into a purchase-money obligation solely by being enveloped in a later transaction. The court in Sanders succinctly summed this up: “One may borrow money to buy something (e.g., a new vehicle), and also borrow additional money for some other purpose (e.g., to pay off the balance of a loan for the trade-in vehicle). The part used to buy something is purchase money obligation. The part used for some other purpose is not.” Sanders, 377 B.R. at 852-53. The conclusion that negative equity is not secured by a PMSI has significant policy underpinnings. If a creditor could secure negative equity with a PMSI, it would not only receive the non-bifurcation advantage provided by 1325(a)(*) to the extent of the money spent to purchase the new car, but the creditor would have the additional advantage of being able to refinance old unsecured debt and turn that amount not only into secured debt, but into PMSI secured debt. While the hanging paragraph was geared to provide creditors •with a benefit and prevent perceived pre-BAPCPA abuses, nothing in the hanging paragraph’s legislative history suggests that Congress intended automobile lenders to be able to immunize themselves against cramdown for any loans beyond those made for the debtor’s purchase of a vehicle within 910 days of a bankruptcy filing. To extend this protection to encompass the conversion of unsecured debt into secured debt, immune from cramdown, would be a windfall to automobile lenders and would be unfair to other creditors who hold unsecured claims. That result would appear to be well beyond the scope of what Congress contemplated or intended when it created the hanging paragraph relief. Accordingly, this Court holds that negative equity is not an expense incurred “in connection with acquiring rights in the" }, { "docid": "21513554", "title": "", "text": "that the money loaned or credit extended made it possible for the debtor to obtain the collateral, and 2) that debtor used the funds supplied to acquire rights in the collateral. Under Kansas law, a security interest in collateral may be both a purchase money security interest and a non-purchase money security interest. The key issue in this case is, therefore, whether AmeriCredit’s PMSI in Debtors’ automobile includes the amount AmeriCre-dit paid to retire the debt on the Windstar that Debtors traded, or whether the PMSI is limited to the actual cost of the new vehicle, along with transactional items such as taxes and title fees. This Court has already addressed this issue, albeit on somewhat different facts, in In re Vega. In Vega, the debtors obtained a loan to purchase a newer vehicle from the same lender that had financed another vehicle purchase, which earlier loan remained unpaid at the time of the second transaction. In addition to financing the actual purchase price of the new vehicle, the lender required debtors borrow additional funds, as part of the same transaction, to retire the debt on prior loan; the other vehicle was not being traded in. Like in this case, that original loan was significantly un-dersecured by the value of the first vehicle. The Vegas then filed for bankruptcy protection within 910 days of purchasing the new vehicle. They proposed to pay the lender the full amount of its claim pursuant to § 1325(a)(*), with the exception of the amount of the claim that resulted from paying off the debt on the other vehicle. The debtors argued that the “rolled over” portion of the claim did not constitute a purchase money interest, and was not subject to the hanging paragraph. This Court agreed, holding that under the Kansas version of the Uniform Commercial Code, only that portion of the claim that is directly attributable to the actual purchase of the new vehicle is a purchase money obligation, and any portion of the claim representing payment of an antecedent debt is not a purchase money obligation. This issue was also recently" }, { "docid": "11286443", "title": "", "text": "negative equity was “integral” to the Fords completing their purchase, because it was inconvenient or impossible for them to complete the purchase any other way. The definition of PMSI, however, does not encompass any and every expense that might enable a particular purchaser to complete the purchase in the most convenient manner. If the Fords were unable to drive themselves to the dealership, we would not consider the cost of a taxi as part of the price of the new truck, even if the dealer were willing to pay for it and fold it into the sales contract. If the Fords did not qualify for a car loan because their resources were strained by too much credit card debt at high interest rates, they could not fold those debts into the PMSI for a new car even if the attendant lower interest rate solved their credit problem and enabled them to obtain the car loan. Allowing a creditor to transform antecedent debt into a PMSI by refinancing the debt into a new contract amount that includes the purchase price of new collateral would convert the concept of “purchase money” from a defined term to one that can be expanded at the will of the parties. See In re Conyers, 379 B.R. 576, 582 (Bankr.M.D.N.C.2007) (“Allowing the Debtor to rollover negative equity into the new loan was simply an accommodation. It was an arrangement made as a favor to another.”); In re Westfall, 365 B.R. 755, 762 (Bankr.N.D.Ohio 2007) (providing the extreme example of a “debtor [who] would not have made it to the dealer’s lot were it not for the emergency appendectomy, [making] payment of the doctor’s outstanding fee ... an enabling expense”), rev’d in part, 376 B.R. 210. Congress confined the hanging paragraph to PMSIs, and I cannot conclude the hanging paragraph protects any and every loan secured by an automobile. B. The In Pari Materia Argument Another approach is to apply the in pari materia doctrine. Courts employing this argument look to other statutes that use the term “price” — frequently, state motor vehicle financing statutes — and," }, { "docid": "2651314", "title": "", "text": "“enable” that consumer to acquire rights in or the use of the replacement collateral. The term “enable” refers to what it has always referred to, which is the value given to allow the debtor to pay, in whole or in part, the actual price of a new item of collateral being acquired, in these cases the replacement vehicles themselves .... Ford Motor Credit urges the Court to consider the case of In re Graupner, where the bankruptcy court in the Middle District of Georgia concluded that, under Georgia’s Motor Vehicle Sales Financing Act (“MVSFA”), “price” includes the payment of negative equity, so reading MVSFA statute in pan material with the Uniform Commercial Code provisions adopted into Georgia statutory law, “price” under the definition of purchase money obligation includes payment of negative equity. As a result, notwithstanding “the seemingly obvious conclusion” that the creditor “does not hold a purchase money security interest,” the court held that the price paid, including the negative equity, was a purchase money obligation, resulting in a PMSI, and therefore subject to the hanging paragraph. It is clear to this Court, however, that the Graupner court’s reliance on Georgia statutory law makes that case easily distinguishable and therefore of little persuasive value. In this case, as in Vega, there are “two separate financial transactions memorialized on a single retail installment contract document for the convenience of some consumers and to allow the auto industry to sell more vehicles, which is good for both parties.” However, “the debt incurred in the separate optional transaction where negative equity is refinanced as part of the combined transaction does not result in a purchase-money security interest.” Consequently, Ford Motor Credit does not have a PMSI for the full amount of its claim. Instead, under the dual-status rule, the excess trade-in balance is an unsecured antecedent debt, which is not entitled to purchase-money treatment under § 1325(a). The extent of Ford Motor Credit’s PMSI in the 2004 Taurus is limited to the purchase price of that vehicle, plus any interest that has accrued, minus any payments that may have been received on" }, { "docid": "2651311", "title": "", "text": "second vehicle. The debtors kept the first vehicle, which was free and clear of liens. The “cash price” for the second vehicle was $6,793.98, and the total amount of the second loan was $8,789.98. The debtors’ Chapter 13 plan proposed to pay $6,794 to the creditor, the purchase price of the second vehicle, and to surrender the first vehicle in full satisfaction of the amount rolled into the second loan, which was the balance owed on the first vehicle. The debtors argued that their plan did not violate the anti-bifurcation provision of the hanging paragraph because they proposed to pay the full purchase price of the second vehicle plus interest, over the life of the plan. The creditor argued that the hanging paragraph required the entire contract balance to be paid with interest. After considering the definition of “purchase money obligation” and the dual-status rule as adopted in Kansas, the bankruptcy court held that the creditor had not met its burden to show that the entire amount loaned in 2005 made it possible for the debtors to purchase the second vehicle, or that the debtors used the entire amount loaned to acquire rights in the vehicle. Thus, the extent of the creditor’s PMSI was limited to the purchase price of the second vehicle, plus any interest that has accrued on the purchase price, minus any payments that might have been received on the loan. The bankruptcy court concluded that the debtors’ plan complied with the hanging paragraph in § 1325(a) by providing for full payment of the portion of the secured creditor’s claim representing its PMSI in the second vehicle. Ford Motor Credit argues that Vega can be distinguished from this case because the funds advanced to pay the negative equity in essence “enabled” the Burgesses to purchase the 2004 Taurus and should be counted as part of the purchase price. The Court disagrees. When negative equity is financed with a new transaction, courts typically find that the negative equity is not included within a party’s PMSI for purposes of § 1325(a)’s hanging paragraph. Although Ford Motor Credit may have" }, { "docid": "11286426", "title": "", "text": "although courts have been interpreting the laws of different states, they have been interpreting mostly identical statutory provisions. . The Official Comment does not differentiate between \"price” and \"value given to enable” in explaining what constitutes a purchase-money obligation. See Kan. Stat. Ann. § 84-9-103 cmt. 3. In the U.C.C.’s pre-revision Article 9, the \"price” prong explicitly referred to security interests held by the seller of the item, while the \"value” prong referred to security interests held by any \"person” who incurred an obligation enabling a buyer to acquire collateral. U.C.C. app. 0 § 9-107. Thus, the “value” prong allowed third parties to acquire purchase money security interests if they advanced money to enable the acquisition of consumer goods. Id. cmt. 2. Revised Article 9 has retained the \"price” and \"value” prongs in its definition of a purchase-money obligation, although neither the text nor the Official Comment mention the distinction between credit granted by sellers or third parties. See Kan. Stat. Ann. § 84-9-103(a)(2), cmt. 3. Because the Official Comment gives no indication that \"price” and \"value given to enable” have distinct meanings, see id. cmt. 3, this court interprets the statute such that, as in the pre-revision Article 9, the two terms are equivalent and refer respectively to obligations incurred by sellers and third parties. TYMKOVICH, Circuit Judge, dissenting. I respectfully dissent because I read the Kansas Uniform Commercial Code, which controls the resolution of this case, as providing a narrower definition of “purchase money security interest” (PMSI) than the majority adopts. In my view, Kansas law prohibits lenders from using a PMSI to secure a loan for negative equity, even if the loan is bundled with a standard car loan that is itself secured with a PMSI. Therefore, Ford Motor Credit Company does not have a PMSI covering the portion of the Fords’ loan attributable to the $7,200 of negative equity in their truck. And because the hanging paragraph, 11 U.S.C. § 1325(a)(*), applies only to PMSIs, the $7,200 is not protected from cram down. Even so, Kansas’s dual-status rule preserves PMSI status for the remaining portion of" }, { "docid": "10730292", "title": "", "text": "while persuasive to the majority, does not really support the position of AmeriCredit and Amicus. And, the definition of purchase money obligation itself limits itself to “all or part” of the price of the collateral, suggesting that the “price” is the upper limit. Interpreting price in this fashion also makes common sense. While reasonable minds could dither over whether “price of the collateral” ought to include accessories or the tax, title, and license fees associated with the purchase of the vehicle in question, the person on the street might be surprised to learn that a court had concluded that the cost of paying off the excess loan on the trade-in should also count as “the price” of the vehicle itself. When the transaction is teased apart, it becomes readily obvious that a portion of this loan is actually an advance (in legal effect to the debtor, but in practical effect to the dealer) to pay off the negative equity from the trade-in. Retiring this overhang from the old vehicle may effectuate the transaction, but effectuating the transaction does not make this portion of the transaction part of the purchase price of the new vehicle that the debtors in this case purchased. In re Sanders, 377 B.R. 836, 852, rev’d, In re Sanders, 403 B.R. 435 (W.D.Tex.2009). There is also a historical reason that negative equity does not represent PMSI. Negative equity is antecedent debt. Penrod, 392 B.R. at 842; Munzberg, 388 B.R. at 539. It represents debt in excess of the value of a presently owned vehicle. Official Comment 2 to former UCC § 9-107 (the precursor to Revised UCC § 9-103) explicitly provided that a PMSI could not secure a pre-existing claim or antecedent debt. See Billings, 838 F.2d at 407. Current Official Comment 5 to Kansas Statute § 84-9-108 states that subsections (b) and (c) limit PMSIs to security interests in goods, fixtures and software, but “[ojther-wise, no change in meaning from former Section 9-107 is intended.” Therefore, the Court should not presume that Kansas Statute § 84-9-103’s definition of PMSI has changed from former UCC 9-107. See" }, { "docid": "11286453", "title": "", "text": "said. III. Conclusion I conclude that negative equity is neither “all or part of the price of’ a new car, nor “value given to enable the debtor to acquire rights in or the use of’ a new ear. Thus, I would hold that the Fords’ negative equity is not part of Ford Credit’s PMSI under Kansas law, and it is therefore not protected from bifurcation and cram down under the hanging paragraph. Under the dual-status rule, only the purchase price of the Fords’ new car and related fees that are akin to transaction costs are secured by a PMSI. Though I recognize my view is at odds with the conclusions of several other courts, including the Fourth and Eleventh Circuits, I believe my interpretation comports more closely with the meaning of purchase money security interest under the Kansas U.C.C. than does the opposing view. . While I recognize Kansas's U.C.C. provisions are similar to those in most states, that does not change the fundamental tenet that we interpret Kansas law consistent with the holdings of Kansas courts. As one judge put it, interpreting the U.C.C. to advance bankruptcy policy (assuming we can identify the correct policy at play here), \"will becloud the clarity and predictability that the authors of Article 9 were seeking in enacting the statutes governing PMSIs.” In re Peaslee, 13 N.Y.3d 75, 86, 913 N.E.2d 387, 393, 885 N.Y.S.2d 1, 6, 2009 WL 1766000, 2009 N.Y. Slip Op. 05197, at *9 (N.Y. June 24, 2009) (Smith, J„ dissenting). Congress, of course, remains free to establish a uniform definition of PMSI applicable to cases governed by the hanging paragraph. . Several federal circuit cases from the 1980s addressed the treatment of overloaded PMSIs in bankruptcy, with respect to the anti-avoidance provision in § 522(f). See In re Billings, 838 F.2d at 408 (suggesting that an obligation can \"be considered only partly a purchase money debt,\" and therefore a security interest can still be considered a PMSI with respect to the portion that is not overloaded (emphasis added)); Pristas v. Landaus of Plymouth, Inc. (In re Pristas), 742 F.2d" }, { "docid": "12203907", "title": "", "text": "Vehicle Does not Destroy Ford Motor Credit’s Purchase Money Security Interest The Debtor argues that since the transaction granting a security interest included debt other than that incurred for the cash price of the new vehicle, the protection under the hanging paragraph does not apply to any element of financing. Therefore, the Debtor argues that Ford Motor Credit’s entire claim is subject to cram down and bifurcation under § 506. In response, Ford Motor Credit argues that it holds a PMSI in the entire amount of the debt, including the negative equity and the other charges financed as part of the purchase of the Debtor’s new vehicle. The arguments advanced in this case appear to be similar to those advanced by the parties in In re Ericksen, decided by this Court on July 26, 2006. The debtors in that case, like the Debtor here, argued that because they used the loan proceeds to pay for other charges, such as taxes and an insurance policy, the creditor could not have a PMSI in the vehicle. In making these arguments, the debtors relied on the “transformation rule” followed in some jurisdictions that states that purchase money status is destroyed where the collateral secures more than its price. In essence, when the loan proceeds are used to acquire both purchase money and non-purchase money collateral, the entire security interest is transformed into a non-PMSI. The creditor, like Ford Motor Credit, argued that the “dual status rule” applied. The dual status rule “allows a security interest to have both the status of a PMSI, to the extent that it is secured by collateral purchased with loan proceeds, and the status of a general security interest, to the extent that the collateral secures obligations unrelated to its purchase.” Essentially, under this rule, purchase money status is not destroyed when collateral secures more than its price. Rather, a PMSI exists to the extent that loan proceeds were used to purchase the collateral. After a detailed analysis of both rules, this Court rejected the “transformation rule” and held that the “dual status rule applied.” In applying the" }, { "docid": "11286442", "title": "", "text": "equity as “part of the same transaction” as the purchase of the new vehicle such that it was “properly regarded as a ‘package deal.’ ” 537 F.3d at 1302. To the Eleventh Circuit, negative equity was an “integral part” of the purchase and was “inextricably intertwined” with the transaction. Id.; see also In re Price, 562 F.3d at 625 (“All of the Prices’ debt ... was incurred at the same time, in the same contract, and for the same purpose: acquiring the new car.”). The majority adopts this approach, concluding that “the trade-in exchange is essentially a single transaction.” Maj. Op. at 1285. The intuitive difficulty with this position is that vehicle purchasers — even those that buy on credit — are not required to purchase the new vehicle by trading in an old one. Whether doing so is necessary or even desirable depends on their individual circumstances. Perhaps in this case it is true that the Fords could not have purchased their new pickup without trading in their old one. And perhaps financing the negative equity was “integral” to the Fords completing their purchase, because it was inconvenient or impossible for them to complete the purchase any other way. The definition of PMSI, however, does not encompass any and every expense that might enable a particular purchaser to complete the purchase in the most convenient manner. If the Fords were unable to drive themselves to the dealership, we would not consider the cost of a taxi as part of the price of the new truck, even if the dealer were willing to pay for it and fold it into the sales contract. If the Fords did not qualify for a car loan because their resources were strained by too much credit card debt at high interest rates, they could not fold those debts into the PMSI for a new car even if the attendant lower interest rate solved their credit problem and enabled them to obtain the car loan. Allowing a creditor to transform antecedent debt into a PMSI by refinancing the debt into a new contract amount that" }, { "docid": "2651315", "title": "", "text": "the hanging paragraph. It is clear to this Court, however, that the Graupner court’s reliance on Georgia statutory law makes that case easily distinguishable and therefore of little persuasive value. In this case, as in Vega, there are “two separate financial transactions memorialized on a single retail installment contract document for the convenience of some consumers and to allow the auto industry to sell more vehicles, which is good for both parties.” However, “the debt incurred in the separate optional transaction where negative equity is refinanced as part of the combined transaction does not result in a purchase-money security interest.” Consequently, Ford Motor Credit does not have a PMSI for the full amount of its claim. Instead, under the dual-status rule, the excess trade-in balance is an unsecured antecedent debt, which is not entitled to purchase-money treatment under § 1325(a). The extent of Ford Motor Credit’s PMSI in the 2004 Taurus is limited to the purchase price of that vehicle, plus any interest that has accrued, minus any payments that may have been received on the loan. The bankruptcy court’s order is affirmed with respect to this issue. Here, the debtors’ Chapter 13 plan proposed to bifurcate Ford Motor Credit’s claim and cram down the secured claim by paying the value of the Taurus, with interest. The bankruptcy court, however, held that Ford Motor Credit’s claim was not subject to § 506(b) bifurcation and ordered the PMSI portion of Ford Motor Credit’s claim paid in full, with no interest, in accordance with its interpretation of the hanging paragraph in § 1325(a). Because this Court has reached a different conclusion on this issue, the Chapter 13 plan as confirmed does not meet the provisions of § 1325(a) in providing full payment of that portion of Ford Motor Credit’s claim representing its PMSI in the 2004 Taurus, with interest. Thus, the order of the bankruptcy court is reversed on this issue. IT IS THEREFORE ORDERED BY THE COURT that the Orders of the bankruptcy court confirming debtors’ Chapter 13 plans are REVERSED and the cases are REMANDED to the bankruptcy court for" }, { "docid": "12203909", "title": "", "text": "“dual status rule” to the facts of that case, the Court concluded that the amounts advanced to pay for sales and property taxes, the document preparation fee, and the credit report fees qualified as part of the “price of the collateral” and were part of the creditor’s PMSI. The creditor, however, did not have a PMSI to the extent that the loan proceeds were used to purchase the insurance policy. The Court determines that, contrary to the Debtor’s assertion, the transactions in question are not mixed but are entirely purchase money obligations as defined in § 70A-9a-103. As noted earlier in this Decision, the transaction with the Debtor was a package deal that included the purchase and financing of taxes, documentary fees, and negative equity, all of which were necessary to complete the transaction. Furthermore, the courts that have addressed the issue of whether the financing of a service contract and other fees prevents application of the hanging paragraph have held that the inclusion of these additional costs in the financing transaction did not prevent the creditor from taking a PMSI in the new vehicle. Even if the Court were to find some support for the Debtor’s argument, the Court determines that under the dual status rule as adopted by this Court in Ericksen, Ford Motor Credit’s entire claim consists of a debt that is secured by a PMSI and cannot be crammed down. Specifically, as in Ericksen, the Court here finds that the amounts advanced to pay for taxes, the document preparation fee, and the negative equity on the Debtor’s trade-in vehicle fall within the definition of the “price” of the vehicle or “value given to enable” the Debtor to purchase the vehicle. As a result, because all of these expenses were necessary to complete the transaction, they are part of Ford Motor Credit’s PMSI and are protected under the hanging paragraph. Accordingly, even if the Court were to apply the dual status rule in this case, the purchase money portion of Ford Motor Credit’s claim (which is the entire amount) is protected from cram down. C. Applicable Interest" }, { "docid": "2651312", "title": "", "text": "debtors to purchase the second vehicle, or that the debtors used the entire amount loaned to acquire rights in the vehicle. Thus, the extent of the creditor’s PMSI was limited to the purchase price of the second vehicle, plus any interest that has accrued on the purchase price, minus any payments that might have been received on the loan. The bankruptcy court concluded that the debtors’ plan complied with the hanging paragraph in § 1325(a) by providing for full payment of the portion of the secured creditor’s claim representing its PMSI in the second vehicle. Ford Motor Credit argues that Vega can be distinguished from this case because the funds advanced to pay the negative equity in essence “enabled” the Burgesses to purchase the 2004 Taurus and should be counted as part of the purchase price. The Court disagrees. When negative equity is financed with a new transaction, courts typically find that the negative equity is not included within a party’s PMSI for purposes of § 1325(a)’s hanging paragraph. Although Ford Motor Credit may have been unwilling to lend money on the purchase of the new vehicle barring payoff of the trade-in balance, this is merely an accommodation that facilitates the transaction. The Burgesses were not required to pay off the existing loan to gain a legal interest in the new Taurus. Thus, the “value given to enable” debtors to obtain rights in the new vehicle did not include the negative equity on the trade-in vehicle. Moreover, the funds loaned to satisfy the negative equity are “not a component of the price of the collateral or the value given to enable the debt- or to acquire rights in the collateral,” and are significantly and qualitatively different from the fees, freight charges, storage costs, taxes, and similar expenses that are typically part of a motor vehicle sale. As recently explained by the bankruptcy court for the Western District of New York, Providing a loan to refinance negative equity on a trade-in, which may be a convenient but unnecessary option for a consumer purchasing a replacement vehicle, is not value given to" }, { "docid": "11286438", "title": "", "text": "a loan for the trade-in vehicle). The part used to buy something is purchase money obligation. The part used for some other purpose is not. In re Sanders, 377 B.R. 836, 853 (Bankr.W.D.Tex.2007), rev’d, 403 B.R. 435 (W.D.Tex.2009). In my view, this is a more consistent interpretation of the Kansas U.C.C. than the majority’s. By interpreting the term “price” in section 84-9-103(a)(2) to mean the actual price of the vehicle plus amounts akin to transaction costs, the limits of PMSIs are easily discernible. In contrast, allowing a creditor to create a PMSI for any money advanced at the same time as a sale enables the creditor to overload the PMSI and defeats the limitations imposed by state law. C. The Dual-Status Rule Because I would hold that Ford Credit does not have a PMSI securing its loan for the Fords’ negative equity, I must answer “the question of what to do with that portion of the debt not entitled to purchase-money status.” See In re Penrod, 392 B.R. at 838. As mentioned above, Kansas has adopted the dual-status rule, which preserves a PMSI to the extent it secures a purchase-money obligation and destroys it to the extent the PMSI is overloaded. Kan. Stat. Ann. § 84-9-103(f) (2007); see also Harry, 50 U. Kan. L.Rev. at 1121-22 (noting that, unlike the standard version of Article 9, the Kansas version expressly adopted the dual-status rule for all transactions, including consumer transactions); see also In re Gibson, 16 B.R. 257, 268-69 (Bankr.D.Kan.1981) (applying Kansas law and adopting the dual-status rule in the consumer context). Consistent with the Butner principle, I would hold that the Kansas dual-status rule applies: part of Ford Credit’s claim is a PMSI protected from cram down, and part is merely a standard secured claim which may be subject to cram down. This does not resolve the case, however. Another question remains, namely how to adjust Ford Credit’s claims to account for payments the Fords made on their car loan before entering bankruptcy. Should the payments be applied first to the negative equity portion of the loan, or should they" }, { "docid": "12203906", "title": "", "text": "All of the amounts financed in the contract, except the gap insurance and service contract, were directly connected to the Debtor’s purchase of the new vehicle. In fact, the evidence before this Court shows that Ford Motor Credit would not have financed the total purchase price had the Debtor not agreed to all the terms of the Contract including the negative equity and add-on transaction costs. The Court, therefore, concludes that because of this close nexus between the negative equity and the financing of the Debtor’s new vehicle, the entire transaction also qualifies as a PMSI. Accordingly, Ford Motor Credit’s entire claim, including that portion of the claim attributable to the payoff of negative equity on the Debtor’s trade-in vehicle and the other transaction costs, should be allowed as a fully secured claim that must be paid in full through the Debtor’s chapter 13 plan. B. The Use of the Loan Proceeds to Refinance the Negative Equity on the Debtor’s Trade-in Vehicle and to Pay off Transaction Costs Associated with the Purchase of the New Vehicle Does not Destroy Ford Motor Credit’s Purchase Money Security Interest The Debtor argues that since the transaction granting a security interest included debt other than that incurred for the cash price of the new vehicle, the protection under the hanging paragraph does not apply to any element of financing. Therefore, the Debtor argues that Ford Motor Credit’s entire claim is subject to cram down and bifurcation under § 506. In response, Ford Motor Credit argues that it holds a PMSI in the entire amount of the debt, including the negative equity and the other charges financed as part of the purchase of the Debtor’s new vehicle. The arguments advanced in this case appear to be similar to those advanced by the parties in In re Ericksen, decided by this Court on July 26, 2006. The debtors in that case, like the Debtor here, argued that because they used the loan proceeds to pay for other charges, such as taxes and an insurance policy, the creditor could not have a PMSI in the vehicle. In" } ]

[ { "docid": "22197311", "title": "", "text": "advance whether they will, or will not, be eligible to join ensuing major party settlements. 5. Exclusions from Settlements. The CERCLA statutes do not require the agency to open all settlement offers to all PRPs; and we refuse to insert such a requirement into the law by judicial fiat. Under the SARA Amendments, the right to draw fine lines, and to structure the order and pace of settlement negotiations to suit, is an agency prerogative. After all, “divide and conquer” has been a recognized negotiating tactic since the days of the Roman Empire, and in the absence of a congressional directive, we cannot deny the EPA use of so conventional a tool. So long as it operates in good faith, the EPA is at liberty to negotiate and settle with whomever it chooses. 6. Crown. Appellant Crown raises an argument unique to it. The facts are these. In 1986 and thereafter Crown failed to comply with EPA's requests for information and documents concerning the amount and nature of the waste it had sent to the Sites. The information requests were authorized by statute, see 42 U.S.C. §§ 6927, 9604(e) (1987), and all PRPs were on notice that compliance therewith was a condition precedent to participation in any class settlement. Crown nonetheless disdained compliance. Eventually, the government had to file suit to obtain the information. Crown argues that it was unfairly subjected to a double penalty because withholding the information resulted both in its exclusion from the settlements and in the imposition of bad-faith penalties. We see nothing amiss. EPA’s authority to enforce § 3007 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6927 (1987), and CERCLA § 104(e), 42 U.S.C. § 9604(e) (1987), is completely independent of its authority to settle Superfund cases. Conditioning settlement eligibility on a PRP’s compliance with an outstanding information request was a perfectly reasonable approach, especially since the data Crown refused to supply was the data necessary to verify the nature and amount of the wastes sent to the Sites, and thus provide a foundation for settlement. We draw this phase of our" } ]

[ { "docid": "19191614", "title": "", "text": "consent before entering the home or looking within it. But as I have explained, given the coercive nature of the home visit, the applicant’s consent should not weigh in favor of holding the visit reasonable. Project 100% clearly makes the price of welfare assistance the waiver of both federal and state constitutional rights, with consent being coerced by the threat of denial of benefits. This is precisely the sort of conditioning of benefits that California’s unconstitutional conditions doctrine forbids. IV. In Scott, we held that police may not conduct a search based on less than probable cause of an individual released while awaiting trial. The majority has tried to explain why those in need of public assistance to provide food, shelter and medical care for themselves and their families have less protection under the Fourth Amendment than those charged with a crime. I am not convinced. Wyman does not support the majority’s unprecedented conclusion that no search occurs under the Fourth Amendment when a district attorney fraud investigator roams through a welfare applicant’s home, scrutinizing the most intimate and private of places, looking for evidence of ineligibility, fraud and crimes wholly unrelated to the welfare application. Because the County’s home visits violate the Fourth Amendment under both Wyman and the special needs cases, they also violate the California right against unreasonable searches, the right to privacy and the unconstitutional conditions doctrine. Although I concur in the majority’s holding that the state regulation prohibiting “[mjass and indiscriminate home visits” is inapplicable to Project 100%, see MPP § 20-007.33, I respectfully dissent from the remainder of the majority’s opinion. . There is no dispute that the investigators make referrals for criminal investigation if they discover evidence of contraband, child abuse or a subject with outstanding felony warrants. On occasion, the investigators even arrange for arrests. [ER 85, Ex.7:107OS] The majority’s attempt to view the fraud investigators’ duty to report evidence of welfare fraud or other crimes as distinct from any \"affirmative” requirement on the part of Project 100% is unavailing. See Maj. Op. at 921 - 922 n. 7. By utilizing sworn" }, { "docid": "1709447", "title": "", "text": "the 1984 amendments to RCRA, and that the Consent Decree should accordingly be broadened to include the PRPs. Given that remedial action has already begun at the site, however, suit against the PRPs under RCRA is now barred. The limitations on citizen suits against transporters and generators of waste are set forth in 42 U.S.C. § 6972(b)(2)(B), which provides, inter alia, that No action may be commenced under subsection (a)(1)(B) of this section if the Administrator, in order to restrain or abate acts or conditions which may have contributed to or are contributing to the activities which may present the alleged endangerment— (iii) has incurred costs to initiate a Remedial Investigation and Feasibility Study under section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 U.S.C. § 9604] and is diligently proceeding with a remedial action under that Act [42 U.S.C. § 9601 et seq.]. EPA has undertaken a RI/FS, and the Receiver does not challenge EPA’s diligence. Thus, RCRA precludes citizen suits against the PRPs under the current circumstances, and therefore does not provide a jurisdictional basis for joinder of the PRPs. The Receiver’s motion to join the PRPs as defendants is accordingly denied. MERITS OF THE RECEIVER’S MOTION Primary Jurisdiction EPA argues that, even if this court has jurisdiction to join EPA, I should deny the Receiver’s motion in deference to the Agency’s primary jurisdiction to clean up Moyer’s Landfill. EPA contends that CERCLA demonstrates Congress’ intent to delegate decisions about remedying hazardous waste sites to the Agency. The Receiver responds that the doctrine of primary jurisdiction provides for a stay of judicial action only until the Agency has exercised its expertise, and that in view of the fact that EPA has already approved the Receiver’s Alternative as environmentally sound, there is no reason for the court to continue to stay its hand. The primary jurisdiction doctrine is a means of allocating initial dispositive authority between an administrative agency and a court when both have the capacity to decide the same issue. The doctrine of primary jurisdiction is relevant to this case: EPA does" }, { "docid": "11034413", "title": "", "text": "Louisiana-Pacific asserts, however, that it undertook its investigation in good faith, assuming that the EPA would come around to its position and cancel its planned investigation. Given the conclusion reached above, that the propriety of the EPA’s conduct is not relevant to this suit, that assertion appears irrelevant. Clearly Louisiana-Pacific could not have prevented EPA’s actions at the time. See 42 U.S.C. § 9613(h); Fairchild Semiconductor Corp. v. EPA, 984 F.2d 283 (9th Cir.1993). Moreover, it may well be that as a matter of sound business and litigation judgment Louisiana-Pacific had to conduct its own investigation to make certain that the EPA conclusions were justified. The issue is not Louisiana-Pacific’s good faith or the reasonableness of the conduct. The issue is who should pay for its exercise of business and litigation judgment, even assuming good faith. The effect of allowing Louisiana-Pacific to recover its investigation costs is to give it discretion, not merely to double the response costs, but potentially to pass those increased costs on to third parties without notice or consent. Nothing in the statute suggests such a result, and arguably, such a result violates the statutory requirement that remedial actions be cost-effective. See 42 U.S.C. § 9605(a)(7); County Line Inv. Co., 933 F.2d at 1514. I conclude that once EPA notified Louisiana-Pacific that it was conducting its own investigation, see 42 U.S.C. § 9604, relative to claims against third parties Louisiana-Pacific’s unapproved investigation was duplicative and thus unnecessary, and accordingly, not recoverable under 42 U.S.C. § 9607(a)(4)(B). Thus, insofar as Louisi ana-Pacific seeks recovery of the costs associated with any part of its investigation conducted after October 8, 1986, the date it received notice from the EPA that its investigation was not authorized and that EPA would conduct the investigation, plaintiffs claim cannot stand. Defendant’s motion for summary judgment relative to the issue of costs incurred in relation to Louisiana-Pacific conducting its own investigation after notice was received, is granted. Insofar as Louisiana-Pacific seeks recovery of costs associated with its investigation incurred prior to EPA’s notice, the determination of whether those costs were necessary and consistent with" }, { "docid": "18078905", "title": "", "text": "successfully misrepresented the nature of its services throughout the corrective action/payment reduction process. Otherwise, it would be too likely that the Federal Government availed itself of free corrective action before deciding to pay Fluor the entirety of amounts billed to allow the complaint to move forward. The allegations of the complaint are thus deficient as against Fluor. Moreover, even assuming relators could properly allege fraud, Fluor has demonstrated that there is no genuine issue of material fact regarding whether Fluor actually misled FEMA to the Government’s financial detriment. Relators admit that Fluor obtained the permits required to perform state-mandated LP gas tank inspection and testing on April 27, 2006. Rec. Doc. 53 ¶ 59. After Fluor pleaded “no contest” to violating the State’s LP gas laws in May 2006, it entered into a settlement with the LPGC whereby it agreed to leak and pressure test LP gas tanks in trailers that it and its subcontractors were installing pursuant tp Task Order 20. Fluor did not actually certify to FEMA that all of the work required by Task Order 20 was complete until November 1, 2006, one day after the period of performance ended and after it had complied with the terms of the settlement. This certification included a line item for “LP gas inspections.” The technical representative for FEMA’s contracting officer confirmed receipt and acceptance of Fluor’s services. . Relators argue that this settlement agreement, and FEMA’s subsequent acceptance of the services rendered, are irrelevant to determining liability because Fluor had a non-negotiable contractual duty to follow the letter of the law. Rec. Doc. 355-1 at 15. This argument in part implicates their contractual nullity theory, addressed below. However for the purposes of this breach of contract theory, there can be no liability for false certification of a fraudulent claim as long as the United States was made aware of the terms of the settlement. To show false certification liability rela-tors would need to come forward with evidence from which a reasonable trier of fact could infer that Fluor misled FEMA regarding the nature of its services in their November" }, { "docid": "1923426", "title": "", "text": "to the text of the provisions at issue. We should construe CERCLA to avoid rendering provisions, or even individual words, superfluous, and the statute’s remedial purpose should not affect the analysis if the meaning of the text is “clear.” Here, were we to heed this advice by reading CERCLA according to its terms, I conclude that we would find the EPA’s oversight costs not to be recoverable as costs of “removal” or “remedial action.” IV. My reading of the statute is further bolstered by certain prudential concerns implicated by the majority’s approach. First, construing CERCLA to authorize the EPA to recover oversight costs raises questions of fairness and due process. Principles of fundamental fairness and due process require that those who violate the law know of their potential exposure. See BMW of N.A., Inc. v. Gore, 517 U.S. 559, 574, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) (“Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.”). In the CERCLA context, responsible parties can work with the EPA to develop a remedial action plan, which should provide the party with a reasonable estimate of its ultimate liability. See 42 U.S.C. § 9604(a) (allowing private parties to conduct preliminary remedial investigation and feasibility studies); § 9621(a) (requiring the EPA to determine appropriate remedial action plan “which provide[s] for cost-effective response”). Under section 106, the responsible party can then undertake to implement that plan itself. One of the primary benefits of this arrangement is that the private party can control the cost of the cleanup operation within the parameters of the plan. See Rohm & Haas, 2 F.3d at 1270 (“[Section] 106 consent orders appear to be the favored method of cleaning up waste sites since they generally are quicker and involve less government expense than cleanups conducted by the government pursuant to § 104.”). Allowing the EPA to bill the responsible party for its “oversight” activities after the fact destroys the" }, { "docid": "11034410", "title": "", "text": "pretrial limitation of the scope of ■ damages available to Louisiana-Pacific in this suit. Before turning to the substantive issue, the court must address a preliminary matter. 1. EPA’s Conduct It appears that the EPA conditioned Louisiana-Pacific’s opportunity to conduct its own, potentially lower cost investigation, on the company’s waiver of a right to judicial review of costs unrelated to the investigation which EPA might charge against it. In the order directing further briefing, I noted that neither party had addressed the question of whether EPA may properly condition a consent agreement on a waiver of a right to judicial review. In the absence of authority to compel such a waiver, it might be argued that the EPA’s conduct in denying Louisiana-Pacific the opportunity to conduct the investigation was arbitrary and capricious, and thus EPA’s investigation, rather than Louisiana-Pacific’s, should be considered duplicative. Upon further consideration, I have concluded that the instant suit, in which the EPA is not a party, is an inappropriate vehicle to determine whether the agency could require a waiver of judicial review as a condition of settlement. The court concludes that the issue of the propriety of EPA’s conduct is properly reviewable in the suit where it seeks recovery of costs for its investigation from Louisiana-Pacific. Accordingly, I turn to the issue of necessity and consistency without regard to the propriety of the EPA’s conduct. 2. Louisiana-Pacific’s Conduct Plaintiff, as the party seeking cost recovery, bears the burden of proving necessity and consistency with the NCP. United States v. Hardage, 982 F.2d 1436, 1442 (10th Cir.1992), (citing United States v. Northeastern Pharmaceutical, 810 F.2d 726, 747 (8th Cir.1986)); County Line Inv. Co. v. Tinney, 933 F.2d 1508, 1512 (10th Cir.1991); Cadillac Fairview, 840 F.2d at 695; Pinole Point Properties, Inc. v. Bethlehem Steel Corp., 596 F.Supp. 283, 290 (N.D.Cal.1984). As a general matter, investigative costs incurred by a private party after the EPA has initiated a remedial investigation, unless authorized by the EPA, are “duplicative” and therefore not recoverable. U.S. v. Hardage, 750 F.Supp. 1460, 1511-17 (W.D.Okla.1990), aff'd, 982 F.2d 1436, 1447-48 (10th Cir.1992). As" }, { "docid": "19191608", "title": "", "text": "in an application for welfare benefits. See Kyllo, 533 U.S. at 27, 121 S.Ct. 2038. Thus, notwithstanding the welfare applicant’s need for government aid, his or her relationship with the state falls far short of reducing the expectation of privacy in the home. See also Scott, 450 F.3d at 872 (distinguishing Griffin to hold that to the extent a pre-trial releasee’s assent to warrantless searches “decreased his reasonable expectation of privacy ... the decrease was insufficient to eliminate his expectation of privacy in his home”). The majority next concludes that the intrusion on privacy is also “reduced” as a result of the procedures used in conducting the home visit and because the applicant must consent to it. Of course, the cost to the applicant of refusing consent is a denial of welfare benefits, and we have rejected the notion that the waiver of constitutional rights in exchange for government benefits is always permissible. Scott, 450 F.3d at 866 (stating that “our constitutional law has not adopted this philosophy wholesale”). The “unconstitutional conditions” doctrine limits the government’s ability to exact waivers of rights as a condition of benefits, even when those benefits are fully discretionary: [Wje live in an age when government influence and control are pervasive in many aspects of our daily lives. Giving the government free rein to grant conditional benefits creates the risk that the government will abuse its power by attaching strings strategically, striking lopsided deals and gradually eroding constitutional protections. Where a constitutional right “functions to preserve spheres of autonomy ... [Unconstitutional conditions doctrine protects that [sphere] by preventing governmental end-runs around the barriers to direct commands.” Id. (quoting Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L.Rev. 1413, 1492 (1989)). The question here is whether the applicant’s option to withdraw his or her consent and terminate the visit permissibly serves to reduce the nature of the intrusion on the applicant’s privacy. In the context of welfare benefits, where government aid is an important means of providing food, shelter and clothing to a family, the coercive nature of the home visit renders the notion of consent effectively" }, { "docid": "11145977", "title": "", "text": "it does not suffice to compel modification of the consent order. 4. Product Market LP contends that the consent order was premised on a product market defined to include both particleboard and medium den sity fiberboard, and that changes in this allegedly unified market exposed the premise as faulty. Even assuming that this argument concerns changed conditions, LP does not indicate any compelling reason why this development should result in modification of the consent order. 5. Subsequent Acquisitions by Other Companies Here,. LP argues that, because other companies were allowed to make acquisitions similar to LP’s, LP should not be bound by the consent order. Again, this does not present a compelling reason to alter the consent order. In agreeing to the order, LP waived the right to show the lawfulness of the acquisition. The fact that another company might eventually show a similar acquisition to be lawful was a sufficiently foreseeable event at the time LP agreed to the consent order to preclude modification of the consent order on this basis. 6. Changes in the Law The FTC devoted more than three pages of its opinion to a discussion of LP’s contention concerning changes in the law. On appeal, LP omits any discussion of an alleged change so compelling as to require modification of the consent order. We therefore agree with the district court that the FTC did not violate the APA in denying LP’s request for modification of the consent order. II. LP’s Defenses Against the Penalty Claim The district court denied summary judgment to LP on two of its defenses against the government’s claim for civil penalties. On appeal, LP contends the district court erred in rejecting defenses based on the doctrine of constitutional tolling and the Commission’s alleged misconduct in addressing LP’s petitions to reopen. A. CONSTITUTIONAL TOLLING LP contends that the civil penalties contemplated by 15 U.S.C. § 45(i) should not accrue during the pendency of its petition to reopen and the subsequent litigation to contest the validity of the FTC's decision on the petition. LP invokes the doctrine of constitutional tolling applied in United" }, { "docid": "11034434", "title": "", "text": "CIV-S-92-2023 LKK/PAN, that EPA may not recover the costs of its Louisiana-Pacific site investigation, Beazer need not fear inconsistent judgments because Louisiana-Pacific could not seek recovery of a non-awarded amount. If Beazer fears that Louisiana-Pacific will fail to raise such a defense and that it may therefore be liable for those costs pursuant to Louisiana- Pacific’s declaratory relief claim, Beazer may choose to intervene in that action and make such an argument. See Rule 24 and 42 U.S.C. § 9613(i). . Louisiana-Pacific suggests that conducting its own study could provide evidence that the EPA’s study was not cost-effective. Once again, that is an issue for the suit between the EPA and Louisiana-Pacific. I note, however, that various district courts have held that the EPA does not have a duty to minimize or to mitigate damages. See United States v. Atlas Minerals and Chemical, Inc., 797 F.Supp. 411, 417 n. 13 (E.D.Pa.1992); United States v. Kramer, 757 F.Supp. 397, 420-21 (D.N.J.1991). . The letter from Jon K. Wactor, Assistant Regional Counsel for the EPA, read, inter alia, “[g]iven that we have not been able to reach agreement on the Consent Order, EPA has decided to move ahead with its investigation at the L-P site.\" See Deck of Marie M. Rongone in Support of Beazer’s Mot. for S.J., exh. 35, filed 8/12/91. In another letter dated November 26, 1986, the EPA opined that \"any investigation LP performs is taken at its own expense and will not affect EPA’s investigation.” . In dicta, the Ninth Circuit has suggested that CERCLA imposes a causation element relative to actual releases as a precondition to recovery , by a private party. Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir.1989). . Louisiana-Pacific bases its theory of recovery on either section 9607(a)(1) or 9607(a)(2). . Subsection 9607(b) provides: \"There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were cause solely by" }, { "docid": "19191612", "title": "", "text": "the Fourth Amendment prohibits the Project 100% home visits as they are conducted in this case. The majority errs in validating them as reasonable under the special needs doctrine. III. Because the home visits are unreasonable under the Fourth Amendment, they also violate the California constitutional right against unreasonable searches and the right to privacy. See Hill v. Nat’l Collegiate Athletic Ass’n, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, 650 (1994) (“Under the Fourth Amendment and the parallel search and seizure clause of the California Constitution (art. I, § 13), the reasonableness of particular searches and seizures is determined by a general balancing test weighing the gravity of the governmental interest or public concern served and the degree to which the [challenged government conduct] advances that concern against the intrusiveness of the interference with individual liberty.” (internal quotation marks omitted)); In re York, 9 Cal.4th 1133, 40 Cal.Rptr.2d 308, 892 P.2d 804, 813 (1995) (observing that the Article I § 1 privacy clause of the California Constitution does not establish broader protection than that provided by the Fourth Amendment or Article I § 13 of the California Constitution). In addition, the Project 100% home visits violate the California unconstitutional conditions doctrine, for two reasons. First, the County has not established that the value to the public of its unreasonable home visit program “manifestly outweighs” the impairment of the welfare applicants’ constitutional rights. See Robbins v. Superior Court, 38 Cal.3d 199, 211 Cal.Rptr. 398, 695 P.2d 695, 704 (1985). Second, the County has not shown that “there are no available alternative means that could maintain the integrity of the benefits program without severely restricting a constitutional right.” Id. The majority avoids this analysis altogether, reasoning that the County has not conditioned the receipt of welfare benefits upon the waiver of a constitutional right, because the home visits are reasonable, and the California and federal constitu tions only create a right to be free from unreasonable searches. Maj. Op. at 931. Of course, the majority’s reasonableness holding is based in large part on its faith in the fraud investigators obtaining" }, { "docid": "173889", "title": "", "text": "(1979) (holding First Amendment imposes no duty on public employers to listen to or respond to union grievances or to recognize unions, even if refusing to do so impairs union effectiveness). If a large private employer decided that it did not want itself or any of its subsidiaries to administer wage checkoffs for political causes, its employees could not claim that this decision violated the.Constitution. The same is true for public employees. They have no'more right than private employees to compel their employer to assist them in exercising their First Amendment rights. This is not to say that the government can place conditions on the receipt of state-created benefits that have the effect of dissuading people from exercising a constitutional right, even if the government has absolute discretion as to whether it will provide the benefit in the first instance. See generally, Richard Epstein, Unconstitutional Conditions, 102 HARV. L. REV. 4 (1988) (explaining the doctrine of unconstitutional conditions); Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 (1989) (discussing the doctrine of unconstitutional conditions). This is well established in our First Amendment jurisprudence. See, e.g., Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961.) (citizen cannot be refused public office - because he refused to declare belief in God); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958) (government cannot condition receipt of tax exemption on people signing declaration that they have never advocated forcible overthrow of the government). The unifying principle- behind this body of case law is simple. Allowing the government to decide that it will not give some people a benefit that it gives to others, even though it is not required to provide such benefit to anyone, simply because a person has exercised a right guaranteed under the Constitution, amounts to a penalty for exercising such right. See Regan, 461 U.S. at 545, 103 S.Ct. 1997. Allowing the government to penalize conduct it cannot directly ban raises concerns that the government will be able to curtail by indirect means what the Constitution prohibits it from regulating directly." }, { "docid": "11034433", "title": "", "text": "I agree with both parties that the investigation should be considered a response action. 42 U.S.C. § 9601(25) defines \"response” to include \"removal.” Section 9601(23) defines \"removal” to include conduct \"necessary to monitor, assess, and evaluate the release ... of hazardous substances [and] action taken under section 9604(b) of this title.” See also Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 892 (9th Cir.1986). . Attorneys' fees and litigation expenses are not recoverable in private causes of action under CERCLA. Stanton Road Associates v. Lohrey Enterprises, 984 F.2d 1015 (9th Cir.1993). . Ordinarily, questions of the extent of recovery available are determined pursuant to motions to strike portions of the prayer. The court, however, cannot fault the use of summary judgment to achieve the same result. . Because the court need not resolve the question of whether EPA improperly conditioned Louisiana-Pacific's opportunity to conduct its own investigation, I need not address the question whether the agency is a necessary or indispensable party under Rule 19. If it is determined in United States v. Louisiana-Pacific, CIV-S-92-2023 LKK/PAN, that EPA may not recover the costs of its Louisiana-Pacific site investigation, Beazer need not fear inconsistent judgments because Louisiana-Pacific could not seek recovery of a non-awarded amount. If Beazer fears that Louisiana-Pacific will fail to raise such a defense and that it may therefore be liable for those costs pursuant to Louisiana- Pacific’s declaratory relief claim, Beazer may choose to intervene in that action and make such an argument. See Rule 24 and 42 U.S.C. § 9613(i). . Louisiana-Pacific suggests that conducting its own study could provide evidence that the EPA’s study was not cost-effective. Once again, that is an issue for the suit between the EPA and Louisiana-Pacific. I note, however, that various district courts have held that the EPA does not have a duty to minimize or to mitigate damages. See United States v. Atlas Minerals and Chemical, Inc., 797 F.Supp. 411, 417 n. 13 (E.D.Pa.1992); United States v. Kramer, 757 F.Supp. 397, 420-21 (D.N.J.1991). . The letter from Jon K. Wactor, Assistant Regional Counsel for the EPA, read, inter" }, { "docid": "11145978", "title": "", "text": "the Law The FTC devoted more than three pages of its opinion to a discussion of LP’s contention concerning changes in the law. On appeal, LP omits any discussion of an alleged change so compelling as to require modification of the consent order. We therefore agree with the district court that the FTC did not violate the APA in denying LP’s request for modification of the consent order. II. LP’s Defenses Against the Penalty Claim The district court denied summary judgment to LP on two of its defenses against the government’s claim for civil penalties. On appeal, LP contends the district court erred in rejecting defenses based on the doctrine of constitutional tolling and the Commission’s alleged misconduct in addressing LP’s petitions to reopen. A. CONSTITUTIONAL TOLLING LP contends that the civil penalties contemplated by 15 U.S.C. § 45(i) should not accrue during the pendency of its petition to reopen and the subsequent litigation to contest the validity of the FTC's decision on the petition. LP invokes the doctrine of constitutional tolling applied in United States v. Pacific Coast European Conference, 451 F.2d 712 (9th Cir.1971) (“PCEC”). In PCEC, we determined that the shipping conference’s resort to judicial review of an agency decision tolled the accrual of penalties until review was complete. The basis for this decision was that it was not “constitutionally permissible to assess a statutory penalty for noncompliance with a statute the validity of which had not yet been judicially determined.” Id. at 718. In the present case, however, LP waived its right to obtain judicial review of the consent order. Furthermore, the Company does not now contest the validity of the order, nor did it contest its validity in its petitions to reopen. Under very similar circumstances, the Second Circuit rejected application of the constitutional tolling doctrine. In Brown & Williamson Tobacco Corp. v. Engman, 527 F.2d 1115 (2d Cir.1975), cert, denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1976), the court faced a challenge to FTC interpretations of final consent decrees. Under the FTC interpretations, major tobacco companies were subject to extensive civil" }, { "docid": "1923427", "title": "", "text": "also of the severity of the penalty that a State may impose.”). In the CERCLA context, responsible parties can work with the EPA to develop a remedial action plan, which should provide the party with a reasonable estimate of its ultimate liability. See 42 U.S.C. § 9604(a) (allowing private parties to conduct preliminary remedial investigation and feasibility studies); § 9621(a) (requiring the EPA to determine appropriate remedial action plan “which provide[s] for cost-effective response”). Under section 106, the responsible party can then undertake to implement that plan itself. One of the primary benefits of this arrangement is that the private party can control the cost of the cleanup operation within the parameters of the plan. See Rohm & Haas, 2 F.3d at 1270 (“[Section] 106 consent orders appear to be the favored method of cleaning up waste sites since they generally are quicker and involve less government expense than cleanups conducted by the government pursuant to § 104.”). Allowing the EPA to bill the responsible party for its “oversight” activities after the fact destroys the fairness and predictability of the statutory arrangement. Second, I worry that there is no natural limit to the type and scope of activities that the EPA can charge to a responsible party under the majority’s rationale. The “arbitrary and capricious” standard it articulates is a difficult one for responsible parties to meet. And although the majority takes comfort in the statute’s limitation of the EPA’s cost recovery to those costs that are “necessary” and “not inconsistent with the national contingency plan,” 42 U.S.C. § 9607(a)(4)(A)-(B), it has not identified any standards within the national contingency plan that would appear to limit the EPA’s discretion to spend money to oversee private party cleanups. Indeed, there are none. By contrast, the plain reading of the statute that I have outlined above clearly distinguishes between recoverable and non-recoverable costs. The costs of direct action to investigate or address a release or threat of release of a hazardous substance are recoverable. “On the other hand, if what the government is monitoring is not the release or hazard itself, but" }, { "docid": "11034412", "title": "", "text": "the district court in Hardage persuasively demonstrated, the measure of necessity is confined to the costs of removal or remedial actions, Hardage, 750 F.Supp. at 1509-11. See also Daigle v. Shell Oil Co., 972 F.2d 1527, 1535-37 (10th Cir.1992) (necessary costs are only those incurred in the containment and cleanup of hazardous releases). Accordingly, where costs have been incurred solely to defend against the government’s action, they are not “necessary” within the meaning of CERCLA § 107(a)(4)(B). Hardage, 750 F.Supp. at 1511, aff'd, 982 F.2d at 1448. See also Fallowfield Dev. Corp. v. Strunk, 1991 WL 17793 at 19 (E.D.Pa.1991) (investigation that is duplicative and undertaken in anticipation of litigation is not a “necessary cost of response”). It is not disputed that after settlement negotiations broke down, the EPA explicitly informed Louisiana-Pacific of its intent to conduct an investigation; nor is it disputed that thereafter, but prior to the commencement of EPA’s investigation, Louisiana-Pacific proceeded with its own unauthorized investigation. It is also not disputed that the EPA and Louisiana-Pacific investigations were essentially the same. Louisiana-Pacific asserts, however, that it undertook its investigation in good faith, assuming that the EPA would come around to its position and cancel its planned investigation. Given the conclusion reached above, that the propriety of the EPA’s conduct is not relevant to this suit, that assertion appears irrelevant. Clearly Louisiana-Pacific could not have prevented EPA’s actions at the time. See 42 U.S.C. § 9613(h); Fairchild Semiconductor Corp. v. EPA, 984 F.2d 283 (9th Cir.1993). Moreover, it may well be that as a matter of sound business and litigation judgment Louisiana-Pacific had to conduct its own investigation to make certain that the EPA conclusions were justified. The issue is not Louisiana-Pacific’s good faith or the reasonableness of the conduct. The issue is who should pay for its exercise of business and litigation judgment, even assuming good faith. The effect of allowing Louisiana-Pacific to recover its investigation costs is to give it discretion, not merely to double the response costs, but potentially to pass those increased costs on to third parties without notice or consent. Nothing in" }, { "docid": "23195700", "title": "", "text": "cites an affidavit in the record indicating that some tasks called for by the order remain outstanding and \"are to be addressed pursuant to an agreement between the United States Environmental Protection Agency and the [settling defendants] under the terms and conditions of the Consent Decree.” Paulen Affi II 6, Supp.App. 77. Perhaps all this means is that although Akzo and the other parties subject to the 1988 order completed what work the EPA required of them, a few tasks were by agreement left for another day. In any case, the fact that some portion of the work originally envisioned by the 1988 order has been handled within the framework of the consent decree only confirms that the remainder was not a \"matter addressed\" by the decree. . To the extent that Akzo seeks contribution for any of the attorneys' fees it has incurred, the Supreme Court's recent decision in Key Tronic Corp. v. United States, supra n. 6, is controlling. That decision leaves the door open to the recoupment of fees for \"lawyers' work that is closely tied to the actual cleanup” of a site, - U.S. at -, 114 S.Ct. at 1967, but precludes the recovery of fees incurred in connection with bringing a cost recovery or contribution suit against other PRPs or in defending the plaintiff's interests in settlement negotiations or other proceedings establishing the extent of its liability, id. at-, -, 114 S.Ct. at 1967, 1968. . The district court's opinion in Key Tronic Corp. v. United States, supra at 764, suggests-that it might constitute a denial of due process to foreclose non-parties to a consent decree from seeking contribution without some type of hearing. Order at 14-15; see also General Time Corp. v. Bulk Materials, Inc., 826 F.Supp. 471, 476-77 (M.D.Ga.1993); but see United States v. Cannons Eng’g Corp., 899 F.2d 79, 93 (1st Cir.1990); United States v. Serafini, 781 F.Supp. 336, 339 (M.D.Pa.1992). We need not address that question, as Akzo has not argued that section 113(f)(2) is unconstitutional either on its face or as Aigner would have it applied here. . At the" }, { "docid": "19191613", "title": "", "text": "that provided by the Fourth Amendment or Article I § 13 of the California Constitution). In addition, the Project 100% home visits violate the California unconstitutional conditions doctrine, for two reasons. First, the County has not established that the value to the public of its unreasonable home visit program “manifestly outweighs” the impairment of the welfare applicants’ constitutional rights. See Robbins v. Superior Court, 38 Cal.3d 199, 211 Cal.Rptr. 398, 695 P.2d 695, 704 (1985). Second, the County has not shown that “there are no available alternative means that could maintain the integrity of the benefits program without severely restricting a constitutional right.” Id. The majority avoids this analysis altogether, reasoning that the County has not conditioned the receipt of welfare benefits upon the waiver of a constitutional right, because the home visits are reasonable, and the California and federal constitu tions only create a right to be free from unreasonable searches. Maj. Op. at 931. Of course, the majority’s reasonableness holding is based in large part on its faith in the fraud investigators obtaining consent before entering the home or looking within it. But as I have explained, given the coercive nature of the home visit, the applicant’s consent should not weigh in favor of holding the visit reasonable. Project 100% clearly makes the price of welfare assistance the waiver of both federal and state constitutional rights, with consent being coerced by the threat of denial of benefits. This is precisely the sort of conditioning of benefits that California’s unconstitutional conditions doctrine forbids. IV. In Scott, we held that police may not conduct a search based on less than probable cause of an individual released while awaiting trial. The majority has tried to explain why those in need of public assistance to provide food, shelter and medical care for themselves and their families have less protection under the Fourth Amendment than those charged with a crime. I am not convinced. Wyman does not support the majority’s unprecedented conclusion that no search occurs under the Fourth Amendment when a district attorney fraud investigator roams through a welfare applicant’s home, scrutinizing" }, { "docid": "11034432", "title": "", "text": "landfill sites. Again, the proper allocation of responsibility must await the damages portion of the case. Ill CONCLUSION For all the above reasons, Beazer’s motion for summary judgment is DENIED except relative to the costs associated with Louisiana-Pacific’s own investigation of its site incurred subsequent to the EPA’s October 8, 1986 notice that its investigation would not be approved; as to such costs the motion is GRANTED. IT IS SO ORDERED. . In that same order, the court denied Beazer's motion for summary judgment on Louisiana-Pacific's federal declaratory relief claim for the expenses of the EPA investigation; denied Beazer's request that this court exercise its discretion not to hear Louisiana Pacific’s supplemental state claims; granted Beazer’s motion for summary judgment on Louisiana-Pacific’s negligence claim as barred by the statute of limitations; and denied Louisiana-Pacific’s motion for leave to amend. . The statute provides in pertinent part that specified defendants shall be liable for \"any other necessary costs of response incurred by any other person consistent with the national contingency plan,” 42 U.S.C. § 9607(a)(4)(B). . I agree with both parties that the investigation should be considered a response action. 42 U.S.C. § 9601(25) defines \"response” to include \"removal.” Section 9601(23) defines \"removal” to include conduct \"necessary to monitor, assess, and evaluate the release ... of hazardous substances [and] action taken under section 9604(b) of this title.” See also Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 892 (9th Cir.1986). . Attorneys' fees and litigation expenses are not recoverable in private causes of action under CERCLA. Stanton Road Associates v. Lohrey Enterprises, 984 F.2d 1015 (9th Cir.1993). . Ordinarily, questions of the extent of recovery available are determined pursuant to motions to strike portions of the prayer. The court, however, cannot fault the use of summary judgment to achieve the same result. . Because the court need not resolve the question of whether EPA improperly conditioned Louisiana-Pacific's opportunity to conduct its own investigation, I need not address the question whether the agency is a necessary or indispensable party under Rule 19. If it is determined in United States v. Louisiana-Pacific," }, { "docid": "11034409", "title": "", "text": "and “consistent with the national contingency plan” because it was duplicative of the EPA’s investigation. It argues that the purpose of Louisiana-Pacific’s investigation was to demonstrate that Beazer was the source of contamination and thus the cost of investigation should be characterized as \"litigation expenses” not recoverable under CERCLA. Louisiana-Pacific argues that its investigation, nearly completed prior to the EPA undertaking its investigation, was not designed solely to develop evidence against Beazer, but was designed to determine the extent and source of contamination on its sites and is thus a recoverable response cost. A claim of inconsistency with the NCP is not a defense to liability under CERCLA, but goes only to the issue of damages. Mid Valley Bank v. North Valley Bank, 764 F.Supp. 1377, 1389 (E.D.Cal.1991) (citing Cadillac Fairview/Cal., Inc. v. Dow Chemical Co., 840 F.2d 691, 695 (9th Cir.1988)). Nonetheless, even viewed as a matter of damages, if Louisiana-Pacific simply may not recover any part of the costs incurred for its investigation as a matter of law, Beazer is entitled to a pretrial limitation of the scope of ■ damages available to Louisiana-Pacific in this suit. Before turning to the substantive issue, the court must address a preliminary matter. 1. EPA’s Conduct It appears that the EPA conditioned Louisiana-Pacific’s opportunity to conduct its own, potentially lower cost investigation, on the company’s waiver of a right to judicial review of costs unrelated to the investigation which EPA might charge against it. In the order directing further briefing, I noted that neither party had addressed the question of whether EPA may properly condition a consent agreement on a waiver of a right to judicial review. In the absence of authority to compel such a waiver, it might be argued that the EPA’s conduct in denying Louisiana-Pacific the opportunity to conduct the investigation was arbitrary and capricious, and thus EPA’s investigation, rather than Louisiana-Pacific’s, should be considered duplicative. Upon further consideration, I have concluded that the instant suit, in which the EPA is not a party, is an inappropriate vehicle to determine whether the agency could require a waiver of" }, { "docid": "19191607", "title": "", "text": "direct cash governmental aid to undergo eligibility verification through home visits.” Maj. Op. at 927. Even if that broad statement is true, it does not follow that it is reasonable for a fraud investigator to conduct an intrusive walk-through of the home and look through its most private locations in search of evidence of welfare fraud, particularly if the applicant had no knowledge of the scope of the visit in the first place. I do not disagree that the Fourth Amendment permits some degree of intrusion in the home to verify welfare eligibility, so long as it is truly comparable to the limited home visit interview program at issue in Wyman. But walk-throughs and fraud investigations of the sort conducted here far exceed what is permissible. Society, I should think, is willing to recognize as reasonable a welfare applicant’s privacy expectation that the most intimate locations of the home will be free from the government’s prying eyes, even when he or she consents to a vaguely described home visit to “verify” or “check” information provided in an application for welfare benefits. See Kyllo, 533 U.S. at 27, 121 S.Ct. 2038. Thus, notwithstanding the welfare applicant’s need for government aid, his or her relationship with the state falls far short of reducing the expectation of privacy in the home. See also Scott, 450 F.3d at 872 (distinguishing Griffin to hold that to the extent a pre-trial releasee’s assent to warrantless searches “decreased his reasonable expectation of privacy ... the decrease was insufficient to eliminate his expectation of privacy in his home”). The majority next concludes that the intrusion on privacy is also “reduced” as a result of the procedures used in conducting the home visit and because the applicant must consent to it. Of course, the cost to the applicant of refusing consent is a denial of welfare benefits, and we have rejected the notion that the waiver of constitutional rights in exchange for government benefits is always permissible. Scott, 450 F.3d at 866 (stating that “our constitutional law has not adopted this philosophy wholesale”). The “unconstitutional conditions” doctrine limits the" } ]

[ { "docid": "22773622", "title": "", "text": "enjoin the enforcement of this compensation award. The District Court affirmed the compensation award and granted the Deputy Commissioner’s motion for summary judgment. 222 F. Supp. 4. A panel of the Court of Appeals for the Fifth Circuit summarily reversed and set aside the award. 327 F. 2d 1003. But compare the later decision of another panel of the Fifth Circuit in O’Keeffe v. Pan American World Airways, Inc., 338 F. 2d 319. The petition for writ of certiorari is granted and the judgment of the Court of Appeals is reversed. Section 2 (2) of the Act, 33 U. S. C. § 902 (2) (1958 ed.), provides workmen’s compensation for any “accidental injury or death arising out of and in the course of employment.” Section 19 (a), 33 U. S. C. § 919 (a) (1958 ed.), provides for the filing of a “claim for compensation” and specifies that “the deputy commissioner shall have full power and authority to hear and determine all questions in respect of such claim.” Section 20 (a), 33 U. S. C. § 920 (a) (1958 ed.), provides that “[i]n any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the claim comes within the provisions of this chapter.” Finally, § 21 (b), 33 U. S. C. § 921 (b) (1958 ed.), provides that the Deputy Commissioner’s compensation order may be suspended and set aside by a reviewing court only “[i]f not in accordance with law.” In cases decided both before and after the passage of the Administrative Procedure Act, 60 Stat. 237, as amended, 5 U. S. C. § 1001 et seq. (1958 ed.), the Court has held that the foregoing statutory provisions limit the scope of judicial review of the Deputy Commissioner’s determination that a “particular injury arose out of and in the course of employment.” Cardillo v. Liberty Mutual Ins. Co., 330 U. S. 469, 477-478; O’Leary v. Brown-Pacific-Maxon, Inc., 340 U. S. 504, 507-508. “It matters not that the basic facts from which" } ]

[ { "docid": "18442874", "title": "", "text": "encountered some occupational hazard or that the injury must have been related to his work. In the Wolff case the appellant conceded that death had resulted from an idiopathic seizure, not related to or caused by any condition of employment. . Certain cases to which we have been pointed have no controlling effect here for each involved some clearly job-related physical exertion which served as a causal factor in precipitating the injury complained of. See, e. g., General Accident Fire & Life Assur. Corp. v. Donovan, 102 U.S.App.D.C. 204, 251 F.2d 915 (1958); Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 219, 206 F.2d 435, 438, cert. denied, 346 U.S. 899, 74 S.Ct. 226, 98 L.Ed. 400 (1953), where “death in the course of employment [resulted] from an aggravation, caused, by the employment, of a pre-existing illness * * *” (emphasis added); Commercial Casualty Ins. Co. v. Hoage, 64 App.D.C. 158, 159, 75 F.2d 677, 678 (1935), where we noted “that an accidental injury may occur notwithstanding the injured is then engaged in his usual and ordinary loorlc, and likewise that the injury need not be external.” (Emphasis added.) . Del Vecehio v. Bowers, 296 U.S. 280, 286, 56 S.Ct. 190, 193 (1935). . Id. . From the statement so quoted and from his testimony in its entirety, the doctor seems to have deemed necessary the demonstration of some external precipitating factor before there could be an injury “arising out of” the employment. But Del Vecchio, supra, teaches that precisely in circumstances as here shown, a claimant is entitled to the benefit of the statutory presumption. The expert explained that the “stress and strain of trying to urinate on a cold day” is a factor since cold produces constrictions of blood vessels and it may increase the tendency or propensity toward heart attacks or sudden death. Such in brief sum was the evidence offered “to overcome the effect of the presumption * * *.” 296 U.S. at 286, 56 S.Ct. at 193. . Del Vecchio v. Bowers, supra note 4. . Id. . Id. . Indeed, in my reading, the employer’s evidence" }, { "docid": "14170204", "title": "", "text": "malady was causally connected with job-related activity. See Mitchell v. Woodworth, supra note 29, 146 U.S.App.D.C. at 23, 449 F.2d at 1100; Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 182—184, 407 F.2d at 312-314; J. V. Vozzolo, Inc. v. Britton, supra note 29, 126 U.S.App.D.C. at 265, 377 F.2d at 150; Butler v. District Parking Management Co., supra note 29, 124 U.S.App.D.C. at 196-197, 363 F.2d at 683-684; Howell v. Einbinder, supra note 29, 121 U.S.App.D.C. at 315, 350 F.2d at 445; Wolff v. Britton, 117 U.S.App.D.C. 209, 212, 328 F.2d 181, 184 (1964); Hancock v. Einbinder, 114 U.S.App.D.C. 67, 71, 310 F.2d 872, 876 (1962); General Accident Fire & Life Assurance Corp. v. Donovan, 102 U.S.App.D.C. 204, 206, 251 F.2d 915, 917, reconsideration denied, 102 U.S.App.D.C. 207, 251 F.2d 961 (1958); Travelers Ins. Co. v. Donovan, 95 U.S.App.D.C. 331, 333-334, 221 F.2d 886, 888-889 (1955); Vandemia v. Cristaldi, 95 U.S.App.D.C. 230, 232, 221 F.2d 103, 105 (1955); Robinson v. Bradshaw, supra note 29, 92 U.S.App.D.C. at 219-220, 206 F.2d at 438-439; Travelers Ins. Co. v. Cardillo, 78 U.S.App.D.C. 255, 257, 140 F.2d 10, 12 (1943); Hartford Accident & Indem. Co. v. Cardillo, 72 App.D.C. 52, 54-59, 112 F.2d 11, 13-18, cert. denied, 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940); Maryland Cas. Co. v. Cardillo, 71 App.D.C. 160, 163, 107 F.2d 959, 962 (1939); New Amsterdam Cas. Co. v. Hoage, 61 App.D.C. 306, 307-309, 62 F.2d 468, 469-471 (1932), cert. denied, 288 U.S. 608, 53 S.Ct. 400, 77 L.Ed. 982 (1933). . Appellees point out that neither did Swinton present any expert opinion contending the accident did cause the back condition, It was not, however, the claimant’s burden to do that unless and until the employer presented sufficient evidence to rebut the presumed causal connection. While it is true that the presumption is not itself evidence, and once rebutted “falls away,” nevertheless it must first be rebutted. Del Vecchio v. Bowers, supra note 32, 296 U.S. at 286, 56 S.Ct. at 193, 80 L.Ed. at 232-233; Hancock v. Einbinder, supra note 34. See cases cited" }, { "docid": "909711", "title": "", "text": "it. Friend v. Britton, 220 F.2d 820, 821 (D.C.Cir.), cert. denied, 350 U.S. 836, 76 S.Ct. 72, 100 L.Ed. 745 (1955). The presumption operates in favor of the claimant unless and until “substantial evidence” is presented by the respondent showing that the claimant’s malady did not arise out of and in the course of his employment. At that point, the presumption “falls out of the case.” Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S.Ct. 190, 193, 80 L.Ed. 229 (1935); Swinton v. Kelly, supra, 554 F.2d at 1082 n.35; Maryland Shipbuilding & Drydock Co. v. Jenkins, 594 F.2d 404, 407 (4th Cir., 1979); St. Louis Shipbuilding Co. v. Director, Office of Workers’ Compensation Programs, 551 F.2d 1119, 1124 (8th Cir., 1977); Travelers Insurance Co. v. Belair, 412 F.2d 297, 301 n.6 (1st Cir., 1969). This circuit has not decided whether, once the presumptive “bubble” bursts and falls out of the case, the ultimate burden of persuasion as to work-relatedness rests with the employer or employee. Cf. Parsons Corp. of California v. Director, Office of Workers’ Compensation Programs, 619 F.2d 38, 41 (9th Cir., 1980) (“Even after the substantial evidence is produced to rebut the statutory presumption, the employer still bears the ultimate burden of persuasion.”). But many courts, including our own, have decided that the beneficent purposes and humanitarian nature of the Act must be borne in mind when deciding whether the employer has presented “substantial” evidence; thus doubtful questions, including factual ones like work-relatedness, must be resolved in favor of claimants. Wheatley v. Adler, supra, 407 F.2d at 313-14 (“We have frequently pointed out that since the statute ‘should be construed liberally’ in favor of employees and their dependents, it is ‘in their favor [that] doubts, including the factual, are to be resolved.’ This approach has . . . characterized our application of the substantial evidence test in these cases.’’ [emphasis supplied]). See also Swinton v. Kelly, supra, 554 F.2d at 1084-85 (citing numerous cases); Ryan-Walsh Stevedoring Co. v. Trainer, 601 F.2d 1306, 1316 (5th Cir. 1979); Army & Air Force Exchange Service v. Greenwood, 585 F.2d" }, { "docid": "18442858", "title": "", "text": "while an employee is urinating in the yard outside is by that fact excluded from the coverage of the law. We need not consider whether such a standard might be permissible, notwithstanding contrary rulings already noted. If such a standard is to be the basis of decision, it must be presented with a reasoned analysis and in such form as to show that it was invoked as a standard of general application, and was not an ad hoc rule being applied obliquely for one occasion without any purpose of breadth in application. Ill There is an express statutory presumption that the “claim comes within the provisions of this chapter,” a presumption of compensability grounded in the “humanitarian nature” of the Act. Moreover, and this is significant in the present case, the fact that an injury or death occurs “in the course of employment strengthens the presumption that it arises out of the employment, with doubts resolved in the claimant’s favor.” Vendemia v. Cristaldi, 95 U.S.App.D.C. 230, 232, 221 F.2d 103, 105 (1955). The rejection of the claim cannot be supported as a matter of law unless the record contains “substantial evidence” showing that death did not arise out of employment. It is undisputed that the employee had a pre-existing condition of arteriosclerosis. But it is settled that an aggravation of a pre-existing condition may constitute a compensable accidental injury under the Act, Howell v. Einbinder, 121 U.S.App.D.C. 312, 313, 350 F.2d 442, 443 (1965). Thus the statutory presumption brings within the Act a death that results in the course of employment when a pre-existing internal disorder takes a sudden turn for the worse, unless the record contains substantial evidence as to the cause of the collapse which shows that it was not aggravated or precipitated by a work-related factor. Butler v. District Parking Management Co., 124 U.S.App.D.C. 195, 363 F.2d 682 (1966). Complaints have been voiced against the aggravation rule as applied to cardiac cases, and suggestions made for narrowing compensability. But these would require changes in our long-standing construction of the Act, and they are appropriately addressed to the" }, { "docid": "14170210", "title": "", "text": "312, quoting O’Keeffe v. Smith, Hinchman & Grylls Associates, supra note 29, 380 U.S. at 363, 85 S.Ct. at 1015, 13 L.Ed.2d at 898. . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 183, 407 F.2d at 313. The quoted language is from Commercial Cas. Ins. Co. v. Hoage, 64 App.D.C. 158, 159, 75 F.2d 677, 678, cert. denied, 295 U.S. 733, 55 S.Ct. 645, 79 L.Ed. 1682 (1935). . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 183, 407 F.2d at 312. . See cases cited supra note 34. . For other cases in this circuit reversing for insufficiency of the evidence to rebut the statutory presumption, see Mitchell v. Woodworth, supra note 29, 146 U.S.App.D.C. at 23, 449 F.2d at 1100; Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 182-194, 407 F.2d at 312-314; Butler v. District Parking Management Co., supra note 29, 124 U.S.App.D.C. at 196-197, 363 F.2d at 683-684; Hancock v. Einbinder, supra note 34, 114 U.S.App.D.C. at 71, 310 F.2d at 876; Robinson v. Bradshaw, supra note 29, 92 U.S.App.D.C. at 219-220, 406 F.2d at 438-439. See also Howell v. Einbinder, supra note 29, 121 U.S.App.D.C. at 315, 350 F.2d at 445; Vendemia v. Cristaldi, supra note 34, 95 U.S.App.D.C. at 232-234, 221 F.2d at 105-107. . Steele v. Adler, 269 F.Supp. 376, 379 (D.D.C.1967). See also Mitchell v. Woodworth, supra note 29, 146 U.S.App.D.C. at 23, 449 F.2d at 1100. . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 184, 407 F.2d at 314, quoting Friend v. Britton, supra note 56, 95 U.S.App.D.C. at 141, 220 F.2d at 822. . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 184, 407 F.2d at 314." }, { "docid": "8695839", "title": "", "text": "FAHY, Circuit Judge. Appellant is the widow of Herbert W. Friend. She appeals from a summary judgment of the District Court granted in favor of the Deputy Commissioner of the District of Columbia Compensation District and his two co-defendants, the employer of her deceased husband and the employer’s insurer. She sued these defendants in the ’ effort to have set aside the Deputy Commissioner’s order rejecting her claim that the circumstances of her husband’s death entitled her to death benefits under the Longshoremen’s and Harbor Workers’ Compensation Act. The facts were presented to the District Court on the record of two proceedings before the Deputy Commissioner. One had eventuated in an order of March 15, 1951, during Friend’s life, awarding him compensation for total and permanent disability, the other led to the order of July 22, 1953, now under review, denying benefits to his widow. Our task is to ascertain whether the Deputy Commissioner’s findings are supported by substantial evidence upon the record considered as a whole, O’Leary v. Brown-Pacifie-Maxon, 340 U. S. 504, 71 S.Ct. 470, 95 L.Ed. 483, read in light of Universal Camera Corp. v. National Labor Relations Board, 340 U. S. 474, 71 S.Ct. 456, 95 L.Ed. 456, or are inadequate to support his conclusion. Under these decisions the reviewing court will not sustain the administrative findings merely because they are substantiated by some isolated evidence. Our review must also take account of the settled rule that the Act is to be construed with a view to its beneficent purposes. Doubts, including the factual, are to be resolved in favor of the employee or his dependent family. Fidelity & Casualty Co. of New York v. Burris, 61 App.D.C. 228, 230, 59 F.2d 1042, 1044; Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 206 F.2d 435, certiorari denied, 346 U.S. 899, 74 S.Ct. 226, 98 L. Ed. 400, and cases there cited. One is struck by several salient facts. While at work February 14, 1950, in the reconstructing of the White House, Friend, an electrician, suffered an injury to his abdominal aorta, already weakened by an aneurysm or a" }, { "docid": "15039259", "title": "", "text": "Also diagnosed was a sclerosis of the cerebral arteries. There was much conflicting medical testimony, not unusual in such cases. The case really turned upon whether or not Bedney’s injury arose out of and in the course of his employment. Section 20 of the Act, 33 U.S.C.A. § 920(a), provides : “In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary— “(a) That the claim comes within the provisions of this chapter.” We have given effect to the statute thus: “That the injury occurs in the course of the employment strengthens the presumption that it arises out of it. Moreover, ‘where there is doubt, it should be resolved in favor of the injured employee or his dependent family.’ But it is unnecessary to rely on general presumptions as to the correctness of the findings.” Quite apart from the presumption which obviously places the burden of proof upon the appellants, we are satisfied that the findings of the District Court do not lack substantial support in the evidence on the record considered as a whole. In this respect and on this account, we think the case comes within principles outlined in O’Leary v. Brown-Pacific-Maxon. Affirmed. . Hartford Accident & Indemnity Co. v. Cardillo, 1940, 72 App.D.C. 52, 54, 112 F.2d 11, 13, certiorari denied, 1940, 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415; Robinson v. Bradshaw, 1953, 92 U.S.App.D.C. 216, 206 F.2d 435, certiorari denied, 1953, 346 U.S. 899, 74 S.Ct. 226, 98 L.Ed. 400; accord Friend v. Britton, 1955, 95 U.S.App.D.C. 139, 220 F.2d 820. . 1951, 340 U.S. 504, 508-509, 71 S.Ct. 470, 95 L.Ed. 483; see Commercial Casualty Ins. Co. v. Hoage, 1935, 64 App.D.C. 158, 75 F.2d 677, certiorari denied, 1935, 295 U.S. 733, 55 S.Ct. 645, 79 L.Ed. 1682." }, { "docid": "14170202", "title": "", "text": "L.Ed.2d 954, 960 (1967); Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207, 10 A.L.R.2d 921 (1949); Pruess v. Udall, 123 U.S.App.D.C. 301, 359 F.2d 615 (1965). . O’Leary v. Brown-Pacific Maxon, Inc., 340 U.S. 504, 508, 71 S.Ct. 470, 472, 95 L.Ed. 483, 487 (1951); Cardillo v. Liberty Mut. Ins. Co., supra note 1. . Mitchell v. Woodworth, 146 U.S.App.D.C. 21, 23, 449 F.2d 1097, 1099 (1971); Wheatley v. Adler, 132 U.S.App.D.C. 177, 180, 407 F.2d 307, 310 (an banc 1968); J. V. Vozzolo, Inc. v. Britton, 126 U.S.App.D.C. 259, 262, 377 F.2d 144, 147 (1967); Butler v. District Parking Management Co., 124 U.S.App.D.C. 195, 199, 363 F.2d 682, 684 (1966); Howell v. Einbinder, 121 U.S.App.D.C. 312, 313-314, 350 F.2d 442, 443-444 (1965); Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 220, 206 F.2d 435, 439, cert. denied, 346 U.S. 899, 74 S.Ct. 226, 98 L.Ed. 400 (1953). . “In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary — (a) That the claim comes within the provisions of this chapter. . . ” Longshoremen’s and Harbor Workers’ Compensation Act, § 20, 33 U.S.C. § 920 (1970). . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 182, 407 F.2d at 312, quoting O’Keefe v. Smith, Hinchman, & Grylls Associates, 380 U.S. 359, 363, 85 S.Ct. 1012, 1015, 13 L.Ed.2d 895, 898 (1965). . Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S.Ct. 190, 193, 80 L.Ed. 229, 232-233 (1935). . Swinton makes a second argument for reversal, urging that the District Court erred in refusing to consider, as a ground for setting aside the Deputy Commissioner’s award, the claim that the back condition was an occupational disease. Finding that Swinton did not raise this claim before the Deputy Commissioner, the District Court refused to consider it. In view of our reversal on the evidence issue, we need not consider this contention. . This court has frequently drawn upon the presumption to assist a determination as to whether a particular" }, { "docid": "14170201", "title": "", "text": "the court of appeals. Matthews v. Walter, 168 U.S.App.D.C. 27, 512 F.2d 941 (1975); S. H. DuPuy v. Director, Office of Workers’ Compensation Programs, 519 F.2d 536 (7th Cir. 1975). In these cases as well, the propriety of this procedure is not questioned. See also McCord v. Benefits Review Board, 168 U.S.App.D.C. 302, 514 F.2d 198 (1975), where a modification request pursuant to 33 U.S.C. § 922 (1970) made after the effective date was transferred to an administrative law judge in accordance with the procedure of the new § 919. These results are not inconsistent with our holding; on the contrary, they are in accord with our logic. Where the claimant can take advantage of the new administrative review methodology without duplicity of effort or delay, it is appropriate that he do so. As remedial legislation, it may be applied immediately, “[ajbsent some contrary indications by the Congress and absent any procedural prejudice to either party.” Denver R. G. W. R.R. v. Brotherhood of Railroad Trainmen, 387 U.S. 556, 563, 87 S.Ct. 1746, 1750, 18 L.Ed.2d 954, 960 (1967); Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207, 10 A.L.R.2d 921 (1949); Pruess v. Udall, 123 U.S.App.D.C. 301, 359 F.2d 615 (1965). . O’Leary v. Brown-Pacific Maxon, Inc., 340 U.S. 504, 508, 71 S.Ct. 470, 472, 95 L.Ed. 483, 487 (1951); Cardillo v. Liberty Mut. Ins. Co., supra note 1. . Mitchell v. Woodworth, 146 U.S.App.D.C. 21, 23, 449 F.2d 1097, 1099 (1971); Wheatley v. Adler, 132 U.S.App.D.C. 177, 180, 407 F.2d 307, 310 (an banc 1968); J. V. Vozzolo, Inc. v. Britton, 126 U.S.App.D.C. 259, 262, 377 F.2d 144, 147 (1967); Butler v. District Parking Management Co., 124 U.S.App.D.C. 195, 199, 363 F.2d 682, 684 (1966); Howell v. Einbinder, 121 U.S.App.D.C. 312, 313-314, 350 F.2d 442, 443-444 (1965); Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 220, 206 F.2d 435, 439, cert. denied, 346 U.S. 899, 74 S.Ct. 226, 98 L.Ed. 400 (1953). . “In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence" }, { "docid": "15069065", "title": "", "text": "52 S.Ct. 187, 76 L.Ed. 366 (1932). . Voris v. Eikel, 346 U.S. 328, 333, 74 S. Ct. 88, 98 L.Ed. 5 (1953); Baltimore & Philadelphia Steamboat Co. v. Norton, supra note 5, 284 U.S. at 414, 52 S.Ct. 187; Hancock v. Einbinder, 114 U.S.App.D.C. 67, 70, 310 F.2d 872, 875 (1962); Phoenix Assurance Co. of New York v. Britton, 110 U.S.App.D.C. 118, 120, 289 F.2d 784, 786 (1961). . Howell v. Einbinder, 121 U.S.App.D.C. 312, 314, 350 F.2d 442, 444 (1965); Hancock v. Einbinder, supra note 6, 114 U.S.App.D.C. at 70, 310 F.2d at 875; Phoenix Assurance Co. of New York v. Britton, supra note 6, 110 U.S.App.D.C. at 120, 289 F.2d at 786; Friend v. Brit-ton, 95 U.S.App.D.C. 139, 141, 220 F.2d 820, 821, cert. denied Harry Alexander, Inc. v. Friend, 350 U.S. 836, 76 S.Ct. 72, 100 L.Ed. 745 (1955). . 33 U.S.C. § 919(a). . 33 U.S.C. § 921(b). . O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 508, 71 S.Ct. 470, 95 L.Ed. 483 (1951). See also Voehl v. Indemnity Insurance Co., 288 U.S. 162, 166, 53 S.Ct. 380, 77 L.Ed. 676 (1933); Friend v. Britton, supra note 7, 95 U.S.App.D.C. at 141, 220 F.2d at 821; Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 217, 206 F.2d 435, 436, cert. denied 346 U.S. 899, 74 S.Ct. 226, 98 L.Ed. 400 (1953). . The evidence was to the effect that coronary arteriosclerosis is practically the sole prerequisite for myocardial infarction. . Hoage v. Employers’ Liability Assurance Corp., 62 App.D.C. 77, 79, 64 F.2d 715, 717, cert. denied Employers’ Liability Assurance Corporation v. Kerper, 290 U.S. 637, 54 S.Ct. 54, 78 L.Ed. 554 (1933). . Howell v. Einbinder, supra note 7; Hancock v. Einbinder, supra note 6; Vinson v. Einbinder, 113 U.S.App.D.C. 246, 307 F.2d 387 (1962), cert. denied Aetna Cas. & Sur. Co. v. Vinson, 372 U.S. 934, 83 S.Ct. 880, 9 L.Ed.2d 765 (1963); Vendemia v. Cristaldi, 95 U.S.App.D.C. 230, 232, 233, 221 F.2d 103, 105, 106 (1955); Friend v. Britton, supra note 7; Robinson v. Bradshaw, supra note 10; Great Atlantic & Pacific Tea Co. v." }, { "docid": "12915213", "title": "", "text": "meet the presumption that injury or illness occurring during employment was caused by that employment. Del Vecchio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229 (1935). The employer offered no substantial evidence that Appellant’s injury was not work-related and hence has not met the burden imposed by the statute. Cf. Travelers Ins. Co. v. Donovan, 95 U.S.App.D.C. 331, 221 F.2d 886 (1955); Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 206 F.2d 435 (1953). As to the statutory notice requirement, Section 12(d), 33 U.S.C. § 912(d), provides: Failure to give such notice shall not bar any claim under this Act (1) if the employer (or his agent in charge of the business in the place where the injury occurred) * * * had knowledge of the injury or death and the deputy commissioner determines that the employer * * * has not been prejudiced by failure to give such notice * * The Deputy Commissioner found that “the employer did not have knowledge of the alleged injury or illness,” but the undisputed testimony of both Appellant’s wife and his immediate superior was that the wife had notified the supervisor on the first day of his absence that Appellant was ill. Both testified that the supervisor had gone to Appellant’s house to pick up the receipts from operation of Appellee’s parking lot, which Appellant had carried home the day he became ill, contrary to his regular custom of turning receipts over to the supervisor at the close of business each day. Thus, the employer clearly had knowledge not only of the fact of Appellant’s illness but also of the fact that he probably became ill on the job. There is no evidence in the record that the employer lacked knowledge of Appellant’s illness or that he had been prejudiced by the lack of a formal written notice. In holding Appellant’s claim barred for failure to give notice the Deputy Commissioner failed to apply the statute. The judgment of the District Court is reversed and the cause remanded with directions to set aside the Deputy Commissioner’s order denying compensation. Reversed and" }, { "docid": "14170203", "title": "", "text": "to the contrary — (a) That the claim comes within the provisions of this chapter. . . ” Longshoremen’s and Harbor Workers’ Compensation Act, § 20, 33 U.S.C. § 920 (1970). . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 182, 407 F.2d at 312, quoting O’Keefe v. Smith, Hinchman, & Grylls Associates, 380 U.S. 359, 363, 85 S.Ct. 1012, 1015, 13 L.Ed.2d 895, 898 (1965). . Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S.Ct. 190, 193, 80 L.Ed. 229, 232-233 (1935). . Swinton makes a second argument for reversal, urging that the District Court erred in refusing to consider, as a ground for setting aside the Deputy Commissioner’s award, the claim that the back condition was an occupational disease. Finding that Swinton did not raise this claim before the Deputy Commissioner, the District Court refused to consider it. In view of our reversal on the evidence issue, we need not consider this contention. . This court has frequently drawn upon the presumption to assist a determination as to whether a particular malady was causally connected with job-related activity. See Mitchell v. Woodworth, supra note 29, 146 U.S.App.D.C. at 23, 449 F.2d at 1100; Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 182—184, 407 F.2d at 312-314; J. V. Vozzolo, Inc. v. Britton, supra note 29, 126 U.S.App.D.C. at 265, 377 F.2d at 150; Butler v. District Parking Management Co., supra note 29, 124 U.S.App.D.C. at 196-197, 363 F.2d at 683-684; Howell v. Einbinder, supra note 29, 121 U.S.App.D.C. at 315, 350 F.2d at 445; Wolff v. Britton, 117 U.S.App.D.C. 209, 212, 328 F.2d 181, 184 (1964); Hancock v. Einbinder, 114 U.S.App.D.C. 67, 71, 310 F.2d 872, 876 (1962); General Accident Fire & Life Assurance Corp. v. Donovan, 102 U.S.App.D.C. 204, 206, 251 F.2d 915, 917, reconsideration denied, 102 U.S.App.D.C. 207, 251 F.2d 961 (1958); Travelers Ins. Co. v. Donovan, 95 U.S.App.D.C. 331, 333-334, 221 F.2d 886, 888-889 (1955); Vandemia v. Cristaldi, 95 U.S.App.D.C. 230, 232, 221 F.2d 103, 105 (1955); Robinson v. Bradshaw, supra note 29, 92 U.S.App.D.C. at 219-220, 206 F.2d at 438-439; Travelers" }, { "docid": "12915212", "title": "", "text": "912 (1964). The District Court sustained the Deputy Commissioner’s findings and granted Appellees’ motion for summary judgment. Two doctors testified, one an internist and the other a psychiatrist. The internist expressed an opinion that Appellant’s illness arose out of his employment as a parking lot attendant; the psychiatrist testified that he could not say that Appellant’s illness was caused by his employment, and that “Since we do not know the cause, I would have to say that I cannot answer the question whether there is a causal relation.” Section 20 of ■ the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1436, 33 U.S.C. § 920 (1964), provides: In any proceeding for the enforcement of a claim for compensation under this Act it shall be presumed, in the absence of substantial evidence to the contrary— (a) That the claim comes within the provisions of this Act. (b) That sufficient notice of such claim has been given. * * * [Emphasis added.] This provision places the burden on the employer to go forward with evidence to meet the presumption that injury or illness occurring during employment was caused by that employment. Del Vecchio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229 (1935). The employer offered no substantial evidence that Appellant’s injury was not work-related and hence has not met the burden imposed by the statute. Cf. Travelers Ins. Co. v. Donovan, 95 U.S.App.D.C. 331, 221 F.2d 886 (1955); Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 206 F.2d 435 (1953). As to the statutory notice requirement, Section 12(d), 33 U.S.C. § 912(d), provides: Failure to give such notice shall not bar any claim under this Act (1) if the employer (or his agent in charge of the business in the place where the injury occurred) * * * had knowledge of the injury or death and the deputy commissioner determines that the employer * * * has not been prejudiced by failure to give such notice * * The Deputy Commissioner found that “the employer did not have knowledge of the alleged injury or illness,” but the undisputed testimony of" }, { "docid": "909713", "title": "", "text": "791, 794 (5th Cir., 1978); Bath Iron Works Corp. v. White, 584 F.2d 569, 574 (1st Cir., 1978); Young & Co. v. Shea, 397 F.2d 185, 188, rehearing en banc denied, 404 F.2d 1059, 1061 (5th Cir. 1968), cert. denied, 395 U.S. 920, 89 S.Ct. 1771, 23 L.Ed.2d 237 (1969) (“The policy of the Act that all doubtful questions are to be resolved in favor of the [claimant] is to be considered in determining whether there was substantial evidence before the Commissioner.” 404 F.2d at 1061). Applying this approach, this court has often found it necessary to reverse orders which are based on evidence too insubstantial to override the statutory presumption; we “will not sustain the administrative findings merely because they are substantiated by some isolated evidence.” Friend v. Britton, supra, 220 F.2d at 821. See, e. g., Swinton v. Kelly, supra, 554 F.2d at 1085 n.61 (collected cases decided in this circuit). On the contrary, in order to overcome the presumption, the employer’s “substantial evidence” must be “specific and comprehensive enough to sever the potential connection” between the disability and the work environment. Id. at 1083 (emphasis supplied); Parsons Corp. of California v. Director, Office of Workers’ Compensation Programs, supra, 619 F.2d at 41. III. THE LAW APPLIED IN THIS CASE It is uncontested that Hensley’s severely aggravated psoriasis condition is an “injury,” as that term is used in the Act; further, under the well recognized “aggravation rule” it is indisputable that “an aggravation of a pre-existing condition may constitute a compensable accidental injury under the Act[.]” Wheatley v. Adler, supra, 407 F.2d at 312. See Director, Office of Workers’ Compensation Programs v. Brandt Airflex Corp., 645 F.2d 1053, at 1057 (D.C.Cir.1981); Friend v. Britton, supra, 220 F.2d at 823; Robinson v. Bradshaw, 206 F.2d 435, 437 (D.C.Cir.), cert. denied, 346 U.S. 899, 74 S.Ct. 226, 98 L.Ed. 400 (1953); Ridgley v. Ceres, Inc., 594 F.2d 1175, 1177 (8th Cir. 1979). The fact that other, nonemployment related factors may also have contributed to, or additionally aggravated Hensley’s malady, does not affect his right to compensation under the “aggravation rule.”" }, { "docid": "18442866", "title": "", "text": "not be external. It is enough if something unexpectedly goes wrong within the human frame. . See Hartford Accident & Indem. Co. v. Cardillo, 72 App.D.C. 52, 54, 112 F.2d 11, 13, cert. denied 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940); New Amsterdam Cas. Co. v. Hoage, 61 App.D.C. 306, 307, 62 F.2d 468, 469, cert. denied, 288 U.S. 608, 53 S.Ct. 400, 77 L.Ed. 982 (1933). . SEO v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). . 33 U.S.C. § 920(a) (1964); O’Keeffe v. Smith, Hinchman & Grylls Assoc., 380 U.S. 359, 362, 85 S.Ct. 1012, 13 L.Ed. 2d 895 (1965). . Del Vecchio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229 (1935) ; Butler v. District Parking Management Co., 124 U.S.App.D.C. 195, 363 F.2d 682 (1966). . “Thus the cases almost invariably decide that the fact that the injury would not have resulted but for the pre-existing disease, or might just as well have been caused by a similar strain at home or at recreation, are both immaterial.” H. McNiece, Heart Disease and the Law 12 (1961). See also id. at 57-59. . See generally Larson, The “Heart Cases” in Workmen’s Compensation; An Analysis and Suggested Solution, 65 Mich.L.Rev. 441 (1967); H. McNiece, supra note 11, at 110-138 (1961). . Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 414, 52 S.Ct. 187, 76 L.Ed. 366 (1932) (Butler, J.). “The law’s humanitarian purpose is to ensure that all shall be compensated, regardless of the employer’s fault.” Jack son v. Lykes Bros. S. S. Co., 386 U.S. 731, 736, 87 S.Ct. 1419, 1423, 18 L.Ed.2d 488 (1967). This expression in Justice Stewart’s dissent was not controverted in the majority opinion. . See J. Y. Vozzolo, Inc. v. Britton, 126 U.S.App.D.C. 259, 377 F.2d 144, 147 (1967); Howell v. Einbinder, 121 U.S.App.D.C. 312, 314, 350 F.2d 442, 444 (1965); Hancock v. Einbinder, 114 U.S.App.D.C. 67, 70, 310 F.2d 872, 875 (1962); Phoenix Assurance Co. of New York v. Britton, 110 U.S.App.D.C. 118, 120, 289 F.2d 784, 786 (1961)." }, { "docid": "909710", "title": "", "text": "627 F.2d 455 (D.C.Cir.1980), cert. granted, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1981); Swinton v. Kelly, 554 F.2d 1075 (D.C.Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976); Wheatley v. Adler, supra. The Act provides that compensation shall be payable when an employee covered under the Act suffers an “injury,” defined as “accidental injury ... arising out of and in the course of employment . . . . ” 33 U.S.C. § 902(2). Section 20 of the Act further provides that “[i]n any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary — (a) That the claim comes within the provisions of this chapter.” 33 U.S.C. § 920 (emphasis supplied). The Section 20 presumption is but one indication of the “humanitarian nature” of the Act generally, O’Keefe v. Smith, Hinchman & Grylls Assoc., Inc., 380 U.S. 359, 362, 85 S.Ct. 1012, 1014, 13 L.Ed.2d 895 (1965), and the “beneficent purposes” which underlie it. Friend v. Britton, 220 F.2d 820, 821 (D.C.Cir.), cert. denied, 350 U.S. 836, 76 S.Ct. 72, 100 L.Ed. 745 (1955). The presumption operates in favor of the claimant unless and until “substantial evidence” is presented by the respondent showing that the claimant’s malady did not arise out of and in the course of his employment. At that point, the presumption “falls out of the case.” Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S.Ct. 190, 193, 80 L.Ed. 229 (1935); Swinton v. Kelly, supra, 554 F.2d at 1082 n.35; Maryland Shipbuilding & Drydock Co. v. Jenkins, 594 F.2d 404, 407 (4th Cir., 1979); St. Louis Shipbuilding Co. v. Director, Office of Workers’ Compensation Programs, 551 F.2d 1119, 1124 (8th Cir., 1977); Travelers Insurance Co. v. Belair, 412 F.2d 297, 301 n.6 (1st Cir., 1969). This circuit has not decided whether, once the presumptive “bubble” bursts and falls out of the case, the ultimate burden of persuasion as to work-relatedness rests with the employer or employee. Cf. Parsons Corp. of California v. Director, Office" }, { "docid": "14170209", "title": "", "text": "& Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 414, 52 S.Ct. 187, 189, 76 L.Ed. 366, 369-370 (1932). . Id. . J. V. Vozzolo, Inc. v. Britton, supra note 29, 126 U.S.App.D.C. at 262, 377 F.2d at 147 (foot notes omitted). See also Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 184, 407 F.2d at 314; Voris v. Eikel, 346 U.S. 228, 333, 74 S.Ct. 88, 91-92, 98 L.Ed. 5, 10 (1953); Baltimore & Philadelphia Steamboat Co. v. Norton, supra note 54, 284 U.S. at 414, 52 S.Ct. at 189, 76 L.Ed. at 369-370; Howell v. Einbinder, supra note 29, 121 U.S.App.D.C. at 314, 350 F.2d at 444; Hancock v. Einbinder, supra note 34, 114 U.S.App.D.C. at 70, 310 F.2d at 875; Phoenix Assurance Co. v. Britton, 110 U.S.App.D.C. 118, 120, 289 F.2d 784, 786 (1961); Friend v. Britton, 95 U.S.App.D.C. 139, 141, 220 F.2d 820, 821, cert. denied, 350 U.S. 836, 76 S.Ct. 72, 100 L.Ed. 745 (1955). . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 182, 407 F.2d at 312, quoting O’Keeffe v. Smith, Hinchman & Grylls Associates, supra note 29, 380 U.S. at 363, 85 S.Ct. at 1015, 13 L.Ed.2d at 898. . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 183, 407 F.2d at 313. The quoted language is from Commercial Cas. Ins. Co. v. Hoage, 64 App.D.C. 158, 159, 75 F.2d 677, 678, cert. denied, 295 U.S. 733, 55 S.Ct. 645, 79 L.Ed. 1682 (1935). . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 183, 407 F.2d at 312. . See cases cited supra note 34. . For other cases in this circuit reversing for insufficiency of the evidence to rebut the statutory presumption, see Mitchell v. Woodworth, supra note 29, 146 U.S.App.D.C. at 23, 449 F.2d at 1100; Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 182-194, 407 F.2d at 312-314; Butler v. District Parking Management Co., supra note 29, 124 U.S.App.D.C. at 196-197, 363 F.2d at 683-684; Hancock v. Einbinder, supra note 34, 114 U.S.App.D.C. at 71, 310 F.2d at 876; Robinson v. Bradshaw, supra note" }, { "docid": "15373804", "title": "", "text": "was contemplated. Ridgley continued working, however, until June 27, 1973, when he sustained an injury to his left hand. While Ridgley was hospitalized for this hand injury, surgery was also performed for the previously contemplated knee replacement. More than a year later, when the knee surgery had completely healed, Dr. Atmore concluded that Ridgley could not perform heavy manual labor involving climbing, squatting or heavy lifting. He has not returned to work since the June 1973 injury to his hand. The Board reversed the ALJ’s initial decision denying Ridgley’s claim on the grounds that Great Lakes had not overcome the presumption of a causal connection between Ridgley’s employment accident and his disability. Section 20 of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 920, establishes a presumption that a claim for compensation comes within the provisions of the Act. The presumption controls unless sufficient proof is offered to rebut it. Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S.Ct. 190, 80 L.Ed. 229 (1935); In re District of Columbia Workmen’s Compensation Act, 180 U.S.App.D.C. 216, 222, 554 F.2d 1075, 1081, cert. denied sub nom. J. Frank Kelly, Inc. v. Swinton, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976); St. Louis Shipbuilding Co. v. Director of the Office of Workers’ Compensation Programs, 551 F.2d 1119, 1124 (8th Cir. 1977). Great. Lakes contends that it overcame the presumption with proof that in 1944 Ridgley had sustained a knee injury which caused an arthritic condition present at the time of the 1970 injury and it was this arthritic condition which ultimately led to the total knee replacement surgety, rather than the July 1970 injury. After carefully reviewing the record, we agree with the Board that Great Lakes did not offer sufficient proof to rebut the presumption that Ridgley’s claim came within the provisions of the Act. Dr. Atmore, Ridgley’s treating physician, opined that the July 1970 injury was the proximate cause of the surgery resulting in a knee replacement. Great Lakes offered no testimony to the contrary. Dr. Atmore did testify that had Ridgley not suffered the 1944" }, { "docid": "16261318", "title": "", "text": "of witnesses and certain passages in his compensation order emphasized the fact “that the employee at the time of his death was performing duties consistent with the normal part of his job.” If his ultimate decision was based on the notion that an injury is not compensable unless it resulted from the performance of unusual work, he was mistaken. We said in Commercial Casualty Ins. Co. v. Hoage, 64 App.D.C. 158, 159, 75 F.2d 677, 678 (1935): “ * * * It has been held a number of times, and we think correctly, that an accidental injury may occur notwithstanding the injured is then engaged in his usual and ordinary work * * *. It is enough if something unexpectedly goes wrong within the human frame. * * * ” The statute provides that “[I]t shall be presumed, in the absence of substantial evidence to the contrary — (a) That the claim comes within the provisions of [this Act].” 44 Stat.1436, 33 U.S.C. § 920. We said in Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 219, 206 F.2d 435, 438, cert. denied 346 U.S. 899, 74 S.Ct. 226, 98 L.Ed. 400 (1953): “It is held, as we have seen, that when death in the course of employment results from an aggravation caused by the employment, of a preexisting illness, it is compensable under the statute. We think it follows that the statutory presumption brings the death within the Act when it results in the course of employment from an illness which has taken a sudden and unusual turn for the worse, not shown by substantial evidence to be unrelated to the employment.” As the Deputy Commissioner’s rejection of Mrs. Hancock’s claim is not supported by the record, the District Court erred in entering summary judgment in his favor and in favor of the insurance company. Mrs. Hancock’s motion therefor should have been granted. Reversed and remanded. . 44 Stat. 1424, 33 U.S.C. § 901 et seq. . 45 Stat. 600, § 36-501, D.C.Code (1961). . 95 U.S.App.D.C. 139, 141, 220 F.2d 820,821 (1955)." }, { "docid": "14170208", "title": "", "text": "subsequently discovered to be worse. See Stancil v. Massey, 141 U.S.App.D.C. 120, 436 F.2d 274, 14 A.L.R.Fed. 390 (1970). . Tr. 97. While apparently neither this report nor the report referred to in note 50 infra, was ever introduced into evidence, their existence and content are not contested. . Tr. 98, 103-104. See note 49 supra. . Avignone Freres, Inc. v. Cardillo, 73 App.D.C. 149, 150, 117 F.2d 385, 386 (1940), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216-217, 83 L.Ed. 126, 140 (1938). . While the Deputy Commissioner made much of the lack of early protestations of back pain by Swinton, App. Ex. A at 2, we have held that mere failure to complain may be “a completely inadequate and insubstantial basis for” concluding that a causal link between accident and injury is nonexistent. Howell v. Einbinder, supra note 29, 121 U.S.App.D.C. at 314, 350 F.2d at 444. . J. V. Vozzolo, Inc. v. Britton, supra note 29, 126 U.S.App.D.C. at 265, 377 F.2d at 150. . Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 414, 52 S.Ct. 187, 189, 76 L.Ed. 366, 369-370 (1932). . Id. . J. V. Vozzolo, Inc. v. Britton, supra note 29, 126 U.S.App.D.C. at 262, 377 F.2d at 147 (foot notes omitted). See also Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 184, 407 F.2d at 314; Voris v. Eikel, 346 U.S. 228, 333, 74 S.Ct. 88, 91-92, 98 L.Ed. 5, 10 (1953); Baltimore & Philadelphia Steamboat Co. v. Norton, supra note 54, 284 U.S. at 414, 52 S.Ct. at 189, 76 L.Ed. at 369-370; Howell v. Einbinder, supra note 29, 121 U.S.App.D.C. at 314, 350 F.2d at 444; Hancock v. Einbinder, supra note 34, 114 U.S.App.D.C. at 70, 310 F.2d at 875; Phoenix Assurance Co. v. Britton, 110 U.S.App.D.C. 118, 120, 289 F.2d 784, 786 (1961); Friend v. Britton, 95 U.S.App.D.C. 139, 141, 220 F.2d 820, 821, cert. denied, 350 U.S. 836, 76 S.Ct. 72, 100 L.Ed. 745 (1955). . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 182, 407 F.2d at" } ]

[ { "docid": "3227437", "title": "", "text": "FOR A MOTION FOR JUDGMENT ON THE PLEADINGS A motion for judgment on the pleadings under Rule 12(c) is treated as á motion to dismiss under Rule 12(b)(6). Atlantic Richfield Co. v. Farm Credit Bank, 226 F.3d 1138, 1160 (10th Cir.2000). The court will dismiss a cause of action for failure to state a claim only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief,” Poole v. County of Otero, 271 F.3d 955, 957 (10th Cir.2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)), or when an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The court accepts as true all well-pleaded facts, as distinguished from con-clusory allegations, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir.2001). The issue in resolving a motion such as this is “not whether [the] plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quotation omitted). It is generally unacceptable for the court to look beyond the four corners of the complaint when deciding a Rule 12(b)(6) motion to dismiss. Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir.2001). If the court on a Rule 12(b)(6) motion looks to matters outside the complaint the court generally must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. Id. However, it is “accepted practice that, ‘if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiffs claims, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.’ ” Id. (quoting GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th" } ]

[ { "docid": "21315040", "title": "", "text": "2; 7. “and 42 U.S.C. § 1983” on page 13, line 2; and 8. Paragraph e on page 16. Defendant’s motion is otherwise overruled. . In plaintiff's first three complaints (Docs. #1,3 and 5) filed December 12, 13 and 16, 2005, plaintiff also asserted claims for race and national origin discrimination under the Kansas Act Against Discrimination (Count III), civil conspiracy under Kansas common law (Count IV) and violation of Z.R.'s procedural due process rights under K.S.A. § 72-8902 (Count V). In response to defendants' motion to dismiss, plaintiff conceded that his state law claims were premature because he did not give notice of the claims under K.S.A. § 12—105(b). See Plaintiff’s Memorandum In Opposition To Defendants’ Motion To Dismiss (Doc. #27) filed February 28, 2006 at 4-5. Accordingly, the Court sustained defendants’ motion to dismiss Counts III, IV and V. See Memorandum And Order (Doc. # 45) filed September 28, 2006. Shortly after defendants filed that motion to dismiss, plaintiff filed a fourth complaint. See Amended Complaint (February 28, 2006) (Doc. # 29). The Court sustained defendants' motion to strike that complaint. See Memorandum And Order (Doc. # 45). . The complaint does not specify the length of the suspension. . Defendant again attempts to introduce facts beyond the complaint, including the District's equal opportunity and nondiscrimination policies and the fact that the District has no policy which prohibits students from speaking Spanish in schools. See Defendant's Memorandum in Support Of Motion To Strike And Dismiss (Doc. # 50) at 7 n. 2. Generally, a court may not look beyond the four corners of the complaint when deciding a Rule 12(b)(6) motion to dismiss. Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir.2001), rev'd on other grounds, 534 U.S. 1161, 122 S.Ct. 1171, 152 L.Ed.2d 115 (2002); Lassiter v. Topeka Unified Sch. Dist. No. 501, 347 F.Supp.2d 1033, 1040 (D.Kan.2004). When a movant presents matters outside the pleadings, the Court has discretion to convert a Rule 12(b)(6) motion into one for summary judgment. See Lybrook v. Members of the Farmington Mun. Sch. Bd. of Educ., 232" }, { "docid": "22029266", "title": "", "text": "Court dismiss Cortez’ Complaint under rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of jurisdiction and for failure to state a claim against these Defendants. See Motion to Dismiss the EEOC and John Wright in his Official Capacity, and Memorandum in Support (“USA’s dismissal motion”), filed July 23, 2007 (Doc. 4). Cortez argues that, because “the EEOC is in charge of discrimination charges, the filing of a party’s claim is not discretionary.” Cortez’ Response at 7. He also argues that issuing a right to sue letter at the end of an EEOC investigation and, “[djeciding to file one charging document when the Supreme Court mandated separate charges for discreet acts of discrimination is not discretionary.” Cortez’ Response at 7. Cortez submitted Ortiz v. United States Border Patrol, 39 F.Supp.2d 1321 (D.N.M.1999) (Black, J.) (, as supplemental briefing. See Notice of Attachment, filed Sept. 17, 2007 (Doc. 12)). STANDARDS FOR DETERMINING MOTIONS FILED UNDER RULES 12(b)(1) AND 12(b)(6) OF THE FEDERAL RULES OF CIVIL PROCEDURE Cortez contends that, because the EEOC and Wright submitted exhibits, their motion to dismiss was converted into one for summary judgment. See Cortez’ Response at 5 (citing rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure); Fed.R.Civ.P. 12(b) (“If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”). The Court does not rely upon outside materials submitted by the EEOC and Wright in support of the USA’s dismissal motion in considering whether dismissal is appropriate under either rule 12(b)(1) or rule 12(b)(6). See GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997) (stating that “the failure to convert a 12(b)(6) motion to one for summary judgment where" }, { "docid": "14786441", "title": "", "text": "to Strike raises the question of whether the Court may consider documents outside the Amended Complaint in deciding the Defendants’ Motions to Dismiss. The Court thus considers the Motion to Strike first, and then turns to the Motions to Dismiss in light of what materials are properly before it. I. Motion to Strike The Lone Star Defendants attached four exhibits to their Motion to Dismiss. The first is the William Blair Report, which is cited extensively in the Amended Complaint. The other three documents are affidavits filed in Bruno’s bankruptcy case that the Trustee references in the Amended Complaint. The Lone Star Defendants request that the Court incorporate these documents into the Amended Complaint so the Court may consider them in deciding their Motion to Dismiss. Alternatively, the Lone Star Defendants request that the Court take judicial notice of the three affidavits. In his Objections to and Motion to Strike Exhibits, the Trustee requests that the Court strike the exhibits attached to the Lone Star Defendants’ Motion, refuse to consider the William Blair Report or the affidavits in ruling on the Motion to Dismiss, and decline to take judicial notice of the affidavits. In the alternative, the Trustee argues that if the Court does consider the exhibits, it should convert the Motion to Dismiss to a motion for summary judgment, give notice of same, and allow for further discovery. Generally, in considering a motion to dismiss under Rule 12(b)(6), the Court “must limit itself to the contents of the pleadings, including attachments thereto.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.2000). If the Court is presented with matters outside the pleadings and does not exclude them, “the motion must be treated as one for summary judgment [and] ... [a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d); see In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007). However, the Fifth Circuit has recognized “one limited exception” to this rule. Scan lan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir.2003)." }, { "docid": "19444917", "title": "", "text": "a procedural error-namely, the consideration of material outside the pleadings. The principle is familiar: Assessment of the facial sufficiency of the complaint must ordinarily be undertaken without resort to matters outside the pleadings. If a court does consider material outside the pleadings, the motion to dismiss must be treated as a motion for summary judgment under Rule 56 and all parties must be given a reasonable opportunity to present all material pertinent to the motion. Gavitt v. Born , 835 F.3d 623, 640 (6th Cir. 2016) (citation omitted); see Fed. R. Civ. P. 12(d) (stating similarly); 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 (3d ed. 2018) (\"Once the district court decides to accept matters outside of the pleadings, the presence of the word 'must' [in Rule 12(d) ] indicates that the judge must convert the motion to dismiss into one for summary judgment .... [T]hat is what has been done in a vast array of cases, especially when the district court actually considers the contents of this material in deciding the motion.\"). The district court considered the Hrabal article without converting Defendants' motion into one for summary judgment and without giving Plaintiffs a reasonable opportunity to present all pertinent material. Defendants spend little time defending this procedure. They argue only that the district court properly relied on the Hrabal article without conversion because the article was judicially noticeable as a \"public-record fact[ ].\" Appellee's Br. 18. We are unpersuaded that the conversion rule was appropriately circumvented on this basis. Although a district court may consider judicially noticeable matters outside the pleadings without converting a Rule 12(b)(6) motion into one for summary judgment, see Jackson v. City of Columbus , 194 F.3d 737, 745 (6th Cir. 1999), overruled on other grounds by Swierkiewicz v. Sorema N. A. , 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), judicially noticeable facts must \"not [be] subject to reasonable dispute,\" see Fed. R. Evid. 201(b). Here, the district court used the Hrabal article to \"determine whether it was a 2008 public disclosure of something Coda now" }, { "docid": "6206222", "title": "", "text": "subject matter jurisdiction are reviewed de novo. See Hart v. Dep’t of Labor ex rel. United States, 116 F.3d 1338, 1339 (10th Cir.1997). Because this appeal arises from a motion to dismiss, we accept all well-pleaded factual allegations in the complaint as true, and view them in the light most favorable to the non-moving party. See Prager v. LaFaver, 180 F.3d 1185, 1187 n. 1 (10th Cir.1999). 2. Analysis a. The district comt properly reviewed the 1992 ACCESS Agreement when deciding Howsam’s motion to dismiss Dean Witter argues that the district court erred in treating Howsam’s Motion as a 12(b)(1) motion rather than a Rule 12(b)(6) motion. That distinction is important because the district court looked outside the confines of Dean Witter’s complaint, i.e., to the 1992 ACCESS Agreement, when deciding Howsam’s Motion, and generally courts should not look beyond the confines of the complaint itself when deciding a Rule 12(b)(6) motion to dismiss. Without deciding whether the dis trict court erred in treating Howsam’s motion as a Rule 12(b)(1) motion to dismiss for lack of jurisdiction, we hold that even if the district court had treated Howsam’s Motion as a Rule 12(b)(6) motion to dismiss for failure to state a claim it still could have properly considered the language of the 1992 ACCESS Agreement. Therefore, any error that may have occurred when the district court characterized Howsam’s motion as a Rule 12(b)(1) motion is harmless to this case. It is permissible for a court to look beyond the four corners of the complaint when deciding a Rule 12(b)(1) motion to dismiss, see Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir.2000), but it is generally unacceptable for a court to do so when deciding a Rule 12(b)(6) motion to dismiss, see Jackson v. Integra, Inc., 952 F.2d 1260, 1261 (10th Cir.1991) (stating that a court “must examine only the plaintiffs complaint ... [and] cannot review matters outside of the complaint” when deciding a Rule 12(b)(6) motion). If the court on a Rule 12(b)(6) motion looks to matters outside the complaint, the court generally must convert the Rule 12(b)(6)" }, { "docid": "6206223", "title": "", "text": "of jurisdiction, we hold that even if the district court had treated Howsam’s Motion as a Rule 12(b)(6) motion to dismiss for failure to state a claim it still could have properly considered the language of the 1992 ACCESS Agreement. Therefore, any error that may have occurred when the district court characterized Howsam’s motion as a Rule 12(b)(1) motion is harmless to this case. It is permissible for a court to look beyond the four corners of the complaint when deciding a Rule 12(b)(1) motion to dismiss, see Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir.2000), but it is generally unacceptable for a court to do so when deciding a Rule 12(b)(6) motion to dismiss, see Jackson v. Integra, Inc., 952 F.2d 1260, 1261 (10th Cir.1991) (stating that a court “must examine only the plaintiffs complaint ... [and] cannot review matters outside of the complaint” when deciding a Rule 12(b)(6) motion). If the court on a Rule 12(b)(6) motion looks to matters outside the complaint, the court generally must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. See Fed. R. Civ. P. 12(c) (“If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in [Federal Rule of Civil Procedure] 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”). It is debatable whether the district court erred in deciding Howsam’s Motion under Rule 12(b)(1) rather than Rule 12(b)(6). We need not resolve that issue in this case, however, because the district court was justified in looking to the 1992 ACCESS Agreement in any event. It is accepted practice that, “if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiffs claim, a defendant may submit an indisputably authentic copy to the court to be considered" }, { "docid": "20537931", "title": "", "text": "filed.” Doe v. United States, 419 F.3d 1058, 1061 (9th Cir.2005). Defendants have not yet answered the complaint or moved to dismiss pursuant to Rule 12(b). The Court will therefore treat the motion as a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). See Seber v. Unger, 881 F.Supp. 323, 325 n. 2 (N.D.Ill.1995) (describing the “common practice of treating the premature Rule 12(c) motion as a Rule 12(b)(6) motion” and citing cases). Although defendants have moved for judgment on the pleadings, the exhibits attached to their motion and the facts referenced in their supporting memorandum go well beyond the limited allegations of the complaint. Under Rule 12(d), courts may treat such motions as motions for summary judgment: “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). The decision whether to exclude the materials is within the court’s discretion. Trans-Spec Truck Serv. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir.2008). Under the circumstances, the Court declines to convert the motion into one for summary judgment. As set forth below, plaintiffs theory of the complaint is far from clear, and in any event plaintiff has had no opportunity to conduct discovery. Accordingly, the Court will apply the standard of review applicable to motions to dismiss for failure to state a claim under Rule 12(b)(6). In so doing, the Court accepts “the complaint’s well-pleaded facts as true and indulges] all reasonable inferences in the plaintiffs favor.” Cook v. Gates, 528 F.3d 42, 48 (1st Cir.2008). As the First Circuit has explained, “The Supreme Court has recently altered the Rule 12(b)(6) standard in a manner which gives it more heft. In order to survive a motion to dismiss, a complaint must allege ‘a plausible entitlement to relief.’” ACA Fin. Guar. Corp. v. Advest, Inc.," }, { "docid": "9607625", "title": "", "text": "199 F.3d 99, 107 (2d Cir.1999); Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.1994); Davis v. United Student Aid Funds, Inc., 45 F.Supp.2d 1104, 1106 (D.Kan.1998); see also GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir.1997) (if document is referred to in, but not attached to, complaint and is central to plaintiffs claim, defendant may submit indisputably authentic copy to be considered on motion to dismiss). Delaware courts have taken judicial notice of a corporate exculpatory charter provision where the defendant has presented a certified copy of such a provision on file with the secretary of state. See In re Baxter Int’l, Inc. Shareholders Litig., 654 A.2d 1268, 1270 (Del.Ch.1995); see also McMillan v. Intercargo Corp., 768 A.2d 492, 501 n. 40 (Del.Ch.2000). Though the articles of incorporation attached to defendants’ memorandum in support of their motion to dismiss appear to be authentic and plaintiff has not contested their accuracy, they constitute a matter outside the complaint and they are not properly authenticated. See Malpiede v. Townson, 780 A.2d 1075, 1090-92 (Del.2001). In deciding a motion to dismiss, the Court may not consider evidence outside the pleadings unless it converts the motion to one for summary judgment. See Prager v. LaFaver, 180 F.3d 1185, 1188-89 (10th Cir.1999); see also Malpiede, 780 A.2d at 1090-92 (because defendants did not satisfy requirements for judicial notice for charter provision and it was not found within complaint, chancery court should have excluded provision or converted Rule 12(b)(6) motion to one for summary judgment under Rule 56). The Court has broad discretion to convert a Rule 12(b)(6) motion to a motion for summary judgment in order to consider matters outside the pleadings. See id. The Court declines to do so, however, in this case. The parties have not asked the Court to convert the motion, and the Court has not notified the parties that it will apply a summary judgment standard. Moreover, while defendants refer to matters outside plaintiffs complaint, their motion to dismiss does not contain a concise statement of material facts which is required by D. Kan. Rule" }, { "docid": "20103900", "title": "", "text": "of matters of public record.” Norris v. Hearst Trust, 500 F.3d 454, 461 n. 9 (5th Cir.2007); Cinel v. Connick, 15 F.3d 1338, 1343 n. 6 (5th Cir.1994). When a party presents “matters outside the pleading” with a Rule 12(b)(6) motion to dismiss, the Court has “complete discretion” to either accept or exclude the evidence for purposes of the motion to dismiss. Isquith ex rel. Isquith v. Middle S. Utils., Inc., 847 F,2d 186, 196 n. 3 (5th Cir.1988); accord Gen. Retail Servs., Inc. v. Wireless Toyz Franchise, LLC, 255 Fed.Appx. 775, 783 (5th Cir.2007). However, “[i]f ... matters outside the pleading are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56”, and “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). Here, Defendant has attached a copy of the May 2010 notice of default, the substitute trustee’s deed, the February 2011 qualified written request, and a Dallas County Appraisal District Residential Account Detail. {See docs. 8, 8-1.) While not attached to Plaintiffs amended complaint, the first three documents are considered part of the pleadings because they are referred to in the amended complaint and are central to the claims. The fourth document is a matter of public record that can be judicially noticed in considering a 12(b)(6) motion. See Fed.R.Evid. 201(b)(2) (a court may take judicial notice of a fact when “it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”). Because the documents attached to the motion to dismiss are either considered part of the pleadings or are subject to judicial notice, there is no need to convert the motion to dismiss into a motion for summary judgment. III. BREACH OF CONTRACT Defendant argues that Plaintiffs breach of contract is subject to dismissal because it is factually unsupported, (doc. 7-1 at 8.) The essential elements of a breach of contract claim in Texas are: “(1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff;" }, { "docid": "9954758", "title": "", "text": "of Points and Authorities in Support of Motion to Dismiss [doc. # 43], Financial Freedom asserts that it has provided the release of mortgage sought by Plaintiff. Even if that assertion were true, and Plaintiff has not conceded it, at this stage of the proceeding, the Court cannot go outside the four corners of the Complaint, and the Court is unwilling to convert Defendants' motions to dismiss into a summary judgment motion. . In considering a motion to dismiss for failure to state a claim, a district court must \"limit itself to the facts stated in the complaint, documents attached to the complaint as exhibits and documents incorporated by reference in the complaint.'' Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir.1999). If a judge looks to additional materials, the Rule 12(b)(6) motion to dismiss should be converted into a Rule 56 motion for summary judgment. Id. According to the Second Circuit, [T]he harm to the plaintiff when a court considers material extraneous to a complaint is the lack of notice that the material may be considered. Accordingly, \"where plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991)) (internal citation omitted). In light of Chambers, and because the Plaintiff relies on and refers to the loan agreement throughout her Complaint, see for example Complaint at ¶¶ 9-34, attached as Ex. A to Notice of Removal [doc. # 1], the Court may consider the actual loan document on a motion to dismiss without converting it to a motion for summary judgment. Accordingly, the Court need not, and does not, convert the motion to dismiss to a motion for summary judgment. . The fact that Plaintiff's claims are based, in part, on CUTPA or Connecticut General Statutes § 49-8 is irrelevant. See Discount Trophy Co. v." }, { "docid": "21315042", "title": "", "text": "F.3d 1334, 1341-42 (10th Cir.2000). Because the parties have not completed discovery and defendant has not set forth the pertinent facts in compliance with D. Kan. Rule 56. 1, the Court declines to consider evidence outside the pleadings. Accordingly, the Court will treat defendant's motion as one to dismiss under Rule 12(b)(6). Defendant argues that in deciding a motion to dismiss, the Court can take judicial notice of public records. See Reply In Support Of Defendants’ Motion To Dismiss (Doc. # 42) filed March 23, 2006 at 2 (citing Stahl v. U.S. Dep’t Of Agric., 327 F.3d 697 (8th Cir.2003)). On a motion to dismiss, the Court may consider (1) indisputably authentic copies of documents if plaintiff referred to them in the complaint and the documents are central to the claims; and (2) facts which are subject to judicial notice. See GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir.1997) (if document referred to in complaint but not attached to it, and is central to plaintiff's claim, defendant may submit indisputably authentic copy to be considered on motion to dismiss); Fed.R.Evid. 201(b) (judicially noticed fact must be one not subject to reasonable dispute in that it is either generally known within territorial jurisdiction of trial court or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned). Defendant’s extrinsic evidence does not fall into either category. Cf. Balfour v. Medicalodges, Inc., No. 05-2086-KHV, 2006 WL 314521, at *5 n. 4 (D.Kan. Feb.9, 2006) (judicial notice that 2004 was leap year); Jones v. Wildgen, 320 F.Supp.2d 1116 (D.Kan.2004) (judicial notice of portions of City Code in action challenging constitutionality of municipal ordinances); Grogan v. O’Neil, 292 F.Supp.2d 1282, 1292 (D.Kan.2003) (judicial notice of corporate exculpatory charter provision where defendant presented certified copy on file with secretary of state; articles of incorporation attached to defendants' motion to dismiss not considered). . Plaintiff may have been misled by defense counsel's letter which erroneously suggested that under Rule 15(a), plaintiff could amend his amended complaint- once without leave of court. See Exhibit C to Defendant’s" }, { "docid": "1046594", "title": "", "text": "court to look beyond the four corners of the complaint when deciding a Rule 12(b)(6) motion to dismiss. Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir.2001). If the court on a Rule 12(b)(6) motion looks to matters outside the complaint, the court generally must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. Id. However, it is “accepted practice that, ‘if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiffs claims, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.’ ” Id. (quoting GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir.1997)). “If the rule were otherwise, a plaintiff with a deficient claim could survive a motion to dismiss simply by not attaching a dispositive document upon which the plaintiff relied.” Id. (quoting GFF Corp., 130 F.3d at 1385). Here, defendants have submitted a variety of documents referenced in plaintiffs’ complaint such as the plan documents and the Sprint/Fidelity trust agreement. Plaintiffs do not dispute the authenticity of these documents, and therefore the court will consider their content, to the extent relevant, in resolving defendants’ motions to dismiss. See, e.g., Rankin v. Rots, 278 F.Supp.2d 853, 857 n. 8 (E.D.Mich.2003) (considering plan and trust documents that were referenced in the complaint in resolving motion to dismiss); Stein v. Smith, 270 F.Supp.2d 157, 163 n. 2 (D.Mass.2003) (same); In re Duke Energy ERISA Litig., 281 F.Supp.2d 786, 789 n. 3 (W.D.N.C.2003) (same; plan document). IV. Analysis The court will largely deny defendants’ motions to dismiss. Specifically, the court will deny all aspects of the motions except that it will dismiss plaintiffs’ imprudent investment claim insofar as it alleges defendants should have amended the plans to reduce or eliminate investments in Sprint stock, plaintiffs’ imprudent investment and disclosure claims against the director defendants, and plaintiffs’ co-fiduciary liability claims against the director defendants and Fidelity. The court finds that plaintiffs have otherwise" }, { "docid": "20103899", "title": "", "text": "Iqbal, 129 S.Ct. at 1949 (citations omitted). When plaintiffs “have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955; accord Iqbal, 129 S.Ct. at 1950-51. As noted, a court cannot look beyond the pleadings in deciding a 12(b)(6) motion. Spivey, 197 F.3d at 774; Baker, 75 F.3d at 196. Pleadings in the 12(b)(6) context include attachments to the complaint. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007); Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.2000). Documents “attache[d] to a motion to dismiss are considered part of the pleadings, if they are referred to in the plaintiffs complaint and are central to her claim.” Collins, 224 F.3d at 499 (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.1993)); accord Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 725 (5th Cir.2003). In addition, “it is clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters of public record.” Norris v. Hearst Trust, 500 F.3d 454, 461 n. 9 (5th Cir.2007); Cinel v. Connick, 15 F.3d 1338, 1343 n. 6 (5th Cir.1994). When a party presents “matters outside the pleading” with a Rule 12(b)(6) motion to dismiss, the Court has “complete discretion” to either accept or exclude the evidence for purposes of the motion to dismiss. Isquith ex rel. Isquith v. Middle S. Utils., Inc., 847 F,2d 186, 196 n. 3 (5th Cir.1988); accord Gen. Retail Servs., Inc. v. Wireless Toyz Franchise, LLC, 255 Fed.Appx. 775, 783 (5th Cir.2007). However, “[i]f ... matters outside the pleading are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56”, and “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). Here, Defendant has attached a copy of the May 2010 notice of default, the substitute trustee’s deed, the February 2011 qualified written request, and a Dallas County Appraisal District" }, { "docid": "15011692", "title": "", "text": "v. Members of the Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1341 (10th Cir.2000) (rejecting argument that court abused its discretion in failing to convert a Rule 12(b)(6) motion into a summary judgment motion where the parties attached materials beyond the pleadings to their motions). Further, in its summary written order following the hearing, the district court expressly stated that it did not consider the affidavit attached to defendants’ motion to dismiss. See Aplt.App. at 156. Although defendants correctly note that this court can affirm the district court's ruling on alternate grounds 'Tor which there is a record sufficient to permit conclusions of law,” United States v. Sandoval, 29 F.3d 537, 542 n. 6 (10th Cir.1994), we will not do so here, where 1) the district court declined to consider materials outside the pleadings; 2) Mr. Poole objected to any conversion to a summary judgment motion because discovery had been stayed as a result of defendants’ qualified immunity defense, see Aplt.App. at 195; and 3) defendants urge us to rely on factual evidence not properly before the district court on a motion to dismiss pursuant to Rule 12(b)(6). . Defendants argue that Mr. Poole failed to preserve his selective prosecution claim, a claim based on equal protection under the Fourteenth Amendment, because he contended at oral argument during the district court hearing that he was proceeding solely on a First Amendment basis and because his list of issues raised on appeal does not reference equal protection. We disagree that Mr. Poole failed to preserve this issue. Where, as here, a selective prosecution claim is based on allegations of retaliation for the threatened exercise of the right of access to the courts, it is a claim \" 'closely intertwined with First Amendment interests.’ ” Gehl Group v. Koby, 63 F.3d 1528, 1538 (10th Cir.1995) (quoting Police Dep’t of the City of Chicago v. Mosley, 408 U.S. 92, 94-95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)). We conclude that the factual and legal basis of Mr. Poole's selective prosecution claim was clear from both his complaint and oral argument during" }, { "docid": "15011691", "title": "", "text": "with Mr. Poole’s motion for leavé to amend his original complaint. The judgment of the United States District Court for the District of New Mexico is REVERSED, and this case is REMANDED for further proceedings consistent with this order. . After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(1); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. . Defendants contend on appeal that this court may consider facts outside of the complaint because \"[a]ppellees converted their motion to dismiss, with respect to their qualified immunity analysis, into a motion governed by the summary judgment standard.” Appellees’ Br. at 1. Defendants attached an affidavit to their motion to dismiss which they argue is admissible evidence at this stage. See id. al 6, 17-18. We reject this argument. The district court has the discretion to decide whether to convert a motion to dismiss into one for summary judgment. See Lybrook v. Members of the Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1341 (10th Cir.2000) (rejecting argument that court abused its discretion in failing to convert a Rule 12(b)(6) motion into a summary judgment motion where the parties attached materials beyond the pleadings to their motions). Further, in its summary written order following the hearing, the district court expressly stated that it did not consider the affidavit attached to defendants’ motion to dismiss. See Aplt.App. at 156. Although defendants correctly note that this court can affirm the district court's ruling on alternate grounds 'Tor which there is a record sufficient to permit conclusions of law,” United States v. Sandoval, 29 F.3d 537, 542 n. 6 (10th Cir.1994), we will not do so here, where 1) the district court declined to consider materials outside the pleadings; 2) Mr. Poole objected to any conversion to a summary judgment motion because discovery had been stayed as a result of defendants’ qualified immunity defense, see Aplt.App. at 195; and 3) defendants urge us to rely on factual evidence" }, { "docid": "21315041", "title": "", "text": "Court sustained defendants' motion to strike that complaint. See Memorandum And Order (Doc. # 45). . The complaint does not specify the length of the suspension. . Defendant again attempts to introduce facts beyond the complaint, including the District's equal opportunity and nondiscrimination policies and the fact that the District has no policy which prohibits students from speaking Spanish in schools. See Defendant's Memorandum in Support Of Motion To Strike And Dismiss (Doc. # 50) at 7 n. 2. Generally, a court may not look beyond the four corners of the complaint when deciding a Rule 12(b)(6) motion to dismiss. Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir.2001), rev'd on other grounds, 534 U.S. 1161, 122 S.Ct. 1171, 152 L.Ed.2d 115 (2002); Lassiter v. Topeka Unified Sch. Dist. No. 501, 347 F.Supp.2d 1033, 1040 (D.Kan.2004). When a movant presents matters outside the pleadings, the Court has discretion to convert a Rule 12(b)(6) motion into one for summary judgment. See Lybrook v. Members of the Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1341-42 (10th Cir.2000). Because the parties have not completed discovery and defendant has not set forth the pertinent facts in compliance with D. Kan. Rule 56. 1, the Court declines to consider evidence outside the pleadings. Accordingly, the Court will treat defendant's motion as one to dismiss under Rule 12(b)(6). Defendant argues that in deciding a motion to dismiss, the Court can take judicial notice of public records. See Reply In Support Of Defendants’ Motion To Dismiss (Doc. # 42) filed March 23, 2006 at 2 (citing Stahl v. U.S. Dep’t Of Agric., 327 F.3d 697 (8th Cir.2003)). On a motion to dismiss, the Court may consider (1) indisputably authentic copies of documents if plaintiff referred to them in the complaint and the documents are central to the claims; and (2) facts which are subject to judicial notice. See GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir.1997) (if document referred to in complaint but not attached to it, and is central to plaintiff's claim, defendant may submit indisputably authentic" }, { "docid": "1046593", "title": "", "text": "dismiss a cause of action for failure to state a claim only when “it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief,” Poole v. County of Otero, 271 F.3d 955, 957 (10th Cir.2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)), or when an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir.2001). The issue in resolving a motion such as this is “not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quotation omitted). It is generally unacceptable for the court to look beyond the four corners of the complaint when deciding a Rule 12(b)(6) motion to dismiss. Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir.2001). If the court on a Rule 12(b)(6) motion looks to matters outside the complaint, the court generally must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. Id. However, it is “accepted practice that, ‘if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiffs claims, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.’ ” Id. (quoting GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir.1997)). “If the rule were otherwise, a plaintiff with a deficient claim could survive a motion to dismiss simply by not attaching a dispositive document upon which the plaintiff relied.” Id. (quoting GFF Corp., 130 F.3d at 1385). Here, defendants have submitted a" }, { "docid": "9607626", "title": "", "text": "1090-92 (Del.2001). In deciding a motion to dismiss, the Court may not consider evidence outside the pleadings unless it converts the motion to one for summary judgment. See Prager v. LaFaver, 180 F.3d 1185, 1188-89 (10th Cir.1999); see also Malpiede, 780 A.2d at 1090-92 (because defendants did not satisfy requirements for judicial notice for charter provision and it was not found within complaint, chancery court should have excluded provision or converted Rule 12(b)(6) motion to one for summary judgment under Rule 56). The Court has broad discretion to convert a Rule 12(b)(6) motion to a motion for summary judgment in order to consider matters outside the pleadings. See id. The Court declines to do so, however, in this case. The parties have not asked the Court to convert the motion, and the Court has not notified the parties that it will apply a summary judgment standard. Moreover, while defendants refer to matters outside plaintiffs complaint, their motion to dismiss does not contain a concise statement of material facts which is required by D. Kan. Rule 56.1. Accordingly, the Court overrules defendants’ motion to dismiss based on the TransFinancial exculpatory charter provision. Even if the Court took judicial notice of the unauthenticated certificate of incorporation attached to defendants’ memorandum in support of their motion, it would overrule defendants’ motion to dismiss. The TransFinancial articles of incorporation provide: No director shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty by such Director as a Director. Notwithstanding the foregoing sentence, a Director shall be liable to the extent provided by applicable law: (i) for breach of the Director’s duty of loyalty to the Corporation or its stockholder[s]; (ii) for acts or omissions not in good faith or -which involve intentional misconduct or a knowing violation of the law; (iii) pursuant to Section 174 of the General Corporation Law; or (iv) for any transaction from which the Director derived an improper personal benefit. Exhibit A to the Memorandum In Support Of Individual Defendants’ Motion To Dismiss (Doc. # 15) filed June 13, 2003. Delaware" }, { "docid": "21623126", "title": "", "text": "MEMORANDUM AND ORDER VanBEBBER, Senior District Judge. Plaintiffs Dale E. McCormick and Curtis A. Kastl II, proceeding pro se, bring this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiffs allege that Defendants Mik Shanks, Scott Hofer, Kirk Fultz, Dean Brown, Warren Burket, Mike Pattrick, Leo Souders, Justin Stipanovich, and James White — all Lawrence, Kansas police officers — police chief Ron Olin, and the City of Lawrence, violated their First, Fourth, Fifth, and Fourteenth Amendment rights during and after Plaintiffs’ arrests in July 2002 and in connection with a sobriety checkpoint in June 2002. Plaintiffs also allege that Defendants violated the Racketeer Influenced Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and Kansas state common law. Defendants have filed a motion to dismiss or for summary judgment (Doc. 121). For the following reasons, the court grants Defendants’ motion. Also pending before the court are Defendants’ motion to supplement Doc. 121 by adding a page erroneously omitted (Doc. 140), Plaintiffs’ motions for summary judgment (Docs. 18 and 20), and Plaintiff McCormick’s motion to deem Plaintiffs’ summary judgment motion(s) as uncontested (Doc. 149). The court grants Doc. 140, but denies Plaintiffs’ motions as moot. I. STANDARDS FOR JUDGMENT Defendants move to dismiss Plaintiffs’ amended complaint pursuant to Fed. R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, or, alternatively, move for summary judgment under Fed.R.Civ.P. 56. Both Plaintiffs and Defendants have asked the court to consider documents outside of the pleadings. When deciding a motion to dismiss, however, the court may consider evidence outside the pleadings only if the court converts the motion to dismiss into a motion for summary judgment. See Prager v. LaFaver, 180 F.3d 1185, 1188-89 (10th Cir.1999) (citing GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997)). The court has broad discretion in deciding whether to convert a motion to dismiss into a motion for summary judgment, and will do so here. See id. at 1189. The court takes judicial notice of the facts supported by documents on file in the District of Kansas. A." }, { "docid": "16715625", "title": "", "text": "MEMORANDUM AND ORDER BELOT, District Judge. This case comes before the court for consideration of defendant United Student Aid Funds, Inc.’s motion to dismiss. The court has reviewed all documents relevant to this matter including, but not limited to, defendant’s motion to dismiss and its supporting memorandum and attachments (Docs. 6 and 7), plaintiff Michael D. Davis’ response (Doc. 15), defendant’s reply (Doc. 20), and defendant’s notice of removal and its various attachments including plaintiffs petition (complaint) (Doc. 1). I. NATURE OF CASE Davis filed this action, pursuant to the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 (1998), seeking damages and attorneys fees. Specifically, Davis alleges that United Student Aid Funds, Inc. (“USA Funds”) violated sections 1692e(11), 1692c(a)(2), and 1692c(b) of the FDCPA regarding communications and/or correspondence by USA Funds in its attempt to collect on student loan debts. The court has subject matter under 28 U.S.C. § 1331 and now considers USA Funds’ motion to dismiss. II. STANDARDS OF REVIEW Courts appropriately render a dismissal under Fed.R.Civ.P. 12(b)(6) “only when it appears that [ ] plaintiff can prove no set of facts in support of the claims that would entitle [ ] plaintiff to relief.” Maez v. Mountain States Tel. And Tel., Inc., 54 F.3d 1488, 1496 (10th Cir.1995) (quoting Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, 927 F.2d 1111, 1115 (10th Cir.1991)) (internal quotations omitted). In a rule 12(b)(6) analysis, courts “accept as true all well-pleaded facts, as distinguished from conclusory allegations, and construe them in the light most favorable to [ ] plaintiff.” Witt v. Roadway Express, 136 F.3d 1424, 1431 (10th Cir.1998). Citing Hall v. Bellmon, 935 F.2d 1106, 1110-11 (10th Cir.1991), Davis correctly states that “[a] motion to dismiss pursuant to Rule 12(b)(6) is treated as a Rule 56 motion for summary judgment when premised on materials outside the pleadings[,] and the opposing parties have forwarded the same notice and opportunity to respond as provided in Rule 56.” However, in spite of what Davis appears to imply, or propose, by including this statement in his standard of review (Doc. 15" } ]

[ { "docid": "23602891", "title": "", "text": "became a total loss before the vessel could be floated. That loss was just as complete as if the vessel had been compelled to put into a port and the voyage had then been abandoned. The sole question is whether in these circumstances the stranding should be regarded as the proximate cause of the loss. Respondent contends that decay or inherent vice was the proximate cause. It is true that the doctrine of proximate cause is applied strictly in cases of marine insurance. But in that class of cases, as well as in others, the proximate cause is the efficient cause and not a merely incidental cause which may be nearer in time to the result. Insurance Company v. Boon, 95 U. S. 117, 130; Arnould on Insurance, 11th ed., § 783. The subject was discussed in an illuminating way by Lord Shaw in his judgment in Leyland Shipping Co. v. Norwich Union Fire Insurance Society, [1918] A. C. 350, 368-371. He said (p. 369): “To treat próxima causa as the cause which is nearest in time is out of the question. Causes are spoken of as if they were as distinct from one another as beads in a row or links in a chain, but — if this metaphysical topic has to be referred to — it is not wholly so. The chain of causation is a handy expression, but the figure is inadequate. Causation is not a chain, but a net. At each point influences, forces, events, precedent and simultaneous, meet; and the radiation from each point extends infinitely. At the point where these various influences meet it is for the judgment as upon a matter of fact to declare which of the causes thus joined at the point of effect was the proximate and which was the remote cause. “What does ‘proximate’ here mean? To treat proximate cause as if it was the cause which is proximate in time is, as I have said, out of the question. The cause which is truly proximate is that which is proximate in efficiency. That efficiency may have been preserved" } ]

[ { "docid": "1224427", "title": "", "text": "precedents from both sides of the Atlantic. Thus, it is apparent that Judge Thomsen in the Republic of China case adopted the Cory v. Burr rationale, fully appreciating that other earlier precedents had taken a different tack. Counsel have cited no authority indicating that Cory v. Burr is not still the rule in England for interpreting and enforcing marine insurance contracts. Certainly then, good reason exists for the adoption of a similar rule in the United States so that uniformity may be achieved. Plaintiffs have also argued that Judge Thomsen’s discussion of the proximate causation rule in the Republic of China case is mere dictum as applied to the facts of this case. This Court would disagree. As indicated early in the Republic of China opinion, the principal issue was whether the loss was caused by barratry or by seizure or by both “as those terms are used and understood in the marine insurance field.” 151 F.Supp. at 215. Thus, it was necessary to ascertain the applicable law before the facts of the Republic of China case could be applied to that law. Accordingly, Judge Thomsen first concluded that Cory v. Burr stated the law to be applied, and that there could be no recovery if a barratry were followed by a seizure and if seizure were excluded from coverage. Once having determined the law to be applied, Judge Thomsen concluded that there had been no seizure insofar as the six vessels were concerned, while there had been a seizure as to the seventh. These determinations of fact were then applied to the Cory v. Burr rule and coverage was found as to six of the vessels but not as to the seventh. It is also argued by the plaintiffs that the Fourth Circuit did not follow Judge Thomsen’s ruling concerning the application of the proper rule of proximate causation to facts such as those here. Again, this Court would disagree. At page 185 of the Fourth Circuit opinion in the Republic of China case, Judge Soper said the following: The respondent also relies on the decision in Cory v." }, { "docid": "1224415", "title": "", "text": "provisions of the policy is “Any claim for loss, damage or expense caused by or resulting from capture, seizure, arrest, restraint or detainment, or the consequences thereof or any attempt thereat, or any taking of vessel by requisition or otherwise, whether in the time of peace or war and whether lawful or otherwise; * * *.” The facts here clearly indicate that there was a seizure of the TEHO by authorities of the government of Colombia. Thus, the critical issue presented is whether the proximate cause of the loss was the barratry that occurred or whether the proximate cause of the loss was the seizure. If the latter, there is no coverage and defendant is entitled to prevail. If the former, plaintiffs would be entitled to judgment, provided, of course, that no other provision of the insurance policy would defeat such recovery. The Supreme Court has defined “proximate cause” in the insurance field as being “that cause which is most nearly and essentially connected with the loss as its efficient cause.” Standard Oil Co. v. United States, 340 U.S. 54, 58, 71 S.Ct. 135, 137, 95 L.Ed.2d 68 (1950). The parties have cited numerous texts and decisions from many different jurisdictions applying principles of proximate causation to particular factual circumstances. Whatever approach may have been taken by courts elsewhere, this Court concludes that in this District and Circuit the controlling law to be applied in a case of this sort was set forth in The Republic of China v. National Union Fire Insurance Co. of Pittsburgh decision of Judge Thomsen, as affirmed in large part by the Fourth Circuit. Indeed, as in this case, the principal issue in Republic of China was the question of proximate causation. In Republic of China, suits had been brought on various marine policies to recover for the loss of seven vessels which had been sold by the United States to the Nationalist government of China, subject to certain mortgages. The ships were being operated by the Nationalist government through a government-owned corporation when most of the masters, officers and crews of the seven vessels" }, { "docid": "1224420", "title": "", "text": "Life Ins. Co., 9 Allen 217, 91 Mass. 217 (1864), Judge Thomsen found that there had been no seizure of these six vessels as that term has been interpreted by English and American law. Insofar as the seventh vessel was concerned, Judge Thomsen concluded that there had been a seizure, and that therefore the loss of the seventh vessel was not covered by the insurance policies. On appeal, the Fourth Circuit, in an opinion by Judge Soper, affirmed Judge Thomsen insofar as his findings and conclusions on the six vessels were concerned, but reversed his finding and conclusion as to the seventh vessel. Judge Soper also relied on the Greene case in concluding that the term “seizure” does not include a violent taking of possession of a ship by its mutinous crew. 254 F.2d at 185. However, the Fourth Circuit found that like the other six ships, the seventh had also involved a breach of trust, which amounted to a barratrous taking rather than a seizure. This Court concludes that both Judge Thomsen and Judge Soper approved the rule of proximate causation as set forth in the House of Lords’ decision in Cory v. Burr, 8 App.Cas. 393 (1883). The facts of the Cory case are quite similar to the facts of this case. There, the master of a vessel used it to smuggle tobacco into Spain without the knowledge or consent of the vessel’s owner. Thereafter, Spanish customs officials seized the ship. The owner sought to recover under his insurance policy which, like the one in this case, covered a loss caused by barratry but not one caused by seizure of the vessel. In affirming an ap peal from a judgment of the Court of Appeal which had affirmed a judgment of the Queen’s Bench Division in favor of the insurer, the House of Lords concluded that a clear case of barratry had been shown, followed by a seizure by Spanish officials. The question presented was whether the proximate cause of the loss was the barratry or the seizure. In a well-reasoned opinion, the House of Lords concluded that" }, { "docid": "1224421", "title": "", "text": "Soper approved the rule of proximate causation as set forth in the House of Lords’ decision in Cory v. Burr, 8 App.Cas. 393 (1883). The facts of the Cory case are quite similar to the facts of this case. There, the master of a vessel used it to smuggle tobacco into Spain without the knowledge or consent of the vessel’s owner. Thereafter, Spanish customs officials seized the ship. The owner sought to recover under his insurance policy which, like the one in this case, covered a loss caused by barratry but not one caused by seizure of the vessel. In affirming an ap peal from a judgment of the Court of Appeal which had affirmed a judgment of the Queen’s Bench Division in favor of the insurer, the House of Lords concluded that a clear case of barratry had been shown, followed by a seizure by Spanish officials. The question presented was whether the proximate cause of the loss was the barratry or the seizure. In a well-reasoned opinion, the House of Lords concluded that the loss was caused by the seizure and not by the preceding barratrous acts. As Lord Blackburn stated (on pages 400-401): Now here they are “warranted free from capture and seizure and the consequences of any attempts thereat.” It was argued that here they have not been warranted free from barratry. That is true, but the barratry would itself occasion no loss at all to the parties insured. If it had not been that the Spanish revenue officers, doing their duty (they were quite right in that respect), had come and seized the ship, the barratry of the captain in coasting along there, hovering as we should call it along the coast, in order that the small smuggling vessel might come and take the tobacco, would have done the assured no harm at all. The underwriters do undertake to indemnify against barratry; they do undertake to indemnify against any loss which is directly sustained in consequence of the barratry; and in this case, as I said before, I think the seizure was as direct a" }, { "docid": "3075575", "title": "", "text": "whether the loss was caused by “barratry”, or by “seizure”, or by both, as those terms are used and understood in the marine insurance field. The parties are agreed that none of the vessels was “captured”. Libelants contend that the losses were caused by a series of barratrous acts, which were committed for various economic and other personal reasons, or, in the alternative, as a consequence of the civil war in China; that the term “seizure” as used in marine insurance policies, does not include the defection of the master or of the mariners, but requires proof of force, used or threatened, by the armed services or representatives of some government. Alternatively, libelants contend that if both barratry and seizure were causes of the loss, recovery may be based on barratry. Respondents contend that the losses were not caused by barratry, but by seizure of the vessels; that a loss caused by seizure was excluded from coverage, even though barratrous acts preceded the seizure and might also be considered a proximate cause of the loss. Respondents also contend that libelants did not do all they were required to do under the sue and labor clause in the policies, and that the United States should have accepted an alleged offer to pay off the mortgage on one of the ships. Facts I have made and filed findings of facts based upon nearly 300 proposed findings submitted by libelants and by respondents. The following narrative statement, supplemented by additional facts set out in the discussion of the several points of law, sets out the essential facts. Historical Background The Republic of China was proclaimed in 1911. For more than a decade thereafter, war lords controlled many of the provinces, but during the middle 1920’s the Kuomintang, under the leadership of Chiang Kai-shek, established a strong national government at Nanking. Following World War II, Taiwan (Formosa), long a part of the Chinese empire, but surrendered to Japan after the Sino-Japanese war in 1904, was reincorporated into China as a province. The Chinese communist movement was relatively unimportant until 1937, when it became active" }, { "docid": "1224418", "title": "", "text": "368-371. “Causation is not a chain but a net.” We must seek “the real efficient cause” of the loss. 302 U.S. at pages 562, 563, 58 S.Ct. at page 374. Libelants contend that a special rule of proximate cause is applied in barratry cases; that if barratry is a cause of the loss, recovery may be had under a policy insuring against barratry, even though the immediate cause of loss may not have been covered by the policy. Whether or not such a special rule exists for barratry cases has been hotly debated in England. See discussion by the various law lords in Cory v. Burr, 8 App.Cas. 393, and by Arnould, sec. 858, n.32. It would prolong this opinion unduly to review that controversy here. I conclude that where barratry is one of the causes of the loss, if the ultimate cause (such as stranding or capture) is not excluded from coverage by a warranty or an exclusion clause, recovery may be had on the grounds of barratry, whether or not the ultimate cause of loss was or was not a peril insured against. See e. g., Arcangelo v. Thompson, 2 Camp. 620. But where the ultimate cause of the loss is excluded from coverage by a warranty or an exclusion clause, recovery may not be had on the grounds of barratry. See Cory v. Burr, supra; Swan v. Union Insurance Co., 3 Wheat. 168, 16 U.S. 168, 4 L.Ed. 361. Like the insurance policy in this case, each of the policies in the Republic of China case specifically excluded a loss by seizure. As Judge Thomsen said at 151 F.Supp. 211: “Therefore, if there was a seizure, and if it was the ultimate cause of the loss, there can be no recovery.” There were seven vessels involved in the Republic of China case. After reviewing the facts, Judge Thomsen concluded that insofar as six of them were concerned, the losses had been caused by acts of barratry and were therefore covered by the insurance policy. Relying on the opinion of Chief Justice Bigelow in Greene v. Pacific Mutual" }, { "docid": "3075632", "title": "", "text": "Proximate Cause The general rule of proximate cause is stated in the opinion of Chief Justice Hughes in Lanasa Fruit Steamship & Importing Co. v. Universal Insurance Co., 302 U.S. 556, 58 S.Ct. 371, 82 L.Ed. 422, in which he approves the discussion of the subject by Lord Shaw in Leyland Shipping Co. v. Norwich Union Fire Ins. Soc., (1918) A.C. 350, 368-371. “Causation is not a chain but a net.” We must seek “the real efficient cause” of the loss. 302 U.S. at pages 562, 563, 58 S.Ct. at page 374. Libelants contend that a special rule of proximate cause is applied in barratry cases; that if barratry is,a cause of the loss, recovery may be had under a policy insuring against barratry, even though the immediate cause of loss may not have been covered by the policy. Whether or not such a special rule exists for barratry cases has been hotly debated in England. See discussion by the various law lords in Cory v. Burr, 8 App. Cas. 393, and by Arnould, sec. 858, n. 32. It would prolong this opinion unduly to review that controversy here. I conclude that where barratry is one of the causes of the loss, if the ultimate cause (such as stranding or capture) is not excluded from coverage by a warranty or an exclusion clause, recovery may be had on the grounds of barratry, whether or not the ultimate cause of loss was or was not a peril insured against. See e. g. Arcangelo v. Thompson, 2 Camp. 620. But where the ultimate cause of the loss is excluded from coverage by a warranty or an exclusion clause, recovery may not be had on the grounds of barratry. See Cory v. Burr, supra; Swan v. Union Insurance Co., 3 Wheat. 168, 16 U.S. 168, 4 L.Ed. 361. The decision in Calmar S. S. Corp. v. Scott, on remand, 2 Cir., 209 F.2d 852, is not to the contrary. The exclusion clause in that case excluded only a claim based upon delay, and did not exclude a claim based upon and due primarily" }, { "docid": "3075631", "title": "", "text": "appointed a M. Bourgeois administrator for the White Russian owners. In March, 1924, while the Jupiter was at Dartmouth, England, the master, Lepine, who had custody of the ship on behalf of the administrator, handed her over to a representative of the U. S. S. R. The British admiralty court held: “ * * * in March, 1924, when Lepine alloyed the U. S. S. R. to take possession of the ship, Mr. Bourgeois was in actual possession and had the right to possession. Lepine may have acted as a loyal subject of the U. S. S. R., but he betrayed his trust to his employers.” (1927) Prob. at 135. The Jupiter No. 3 was cited with apparent approval in Compania Espanola, etc. v. The Navemar, 303 U.S. 68, 76 note, 58 S.Ct. 432, 82 L.Ed. 667. See also Compania Naviera Bachi v. Hosegood & Co., Ltd., (1938) 2 All England Law Reports 189. The acts of the masters and mariners in the instant cases were clearly barratrous, under both British and American law. IV. Proximate Cause The general rule of proximate cause is stated in the opinion of Chief Justice Hughes in Lanasa Fruit Steamship & Importing Co. v. Universal Insurance Co., 302 U.S. 556, 58 S.Ct. 371, 82 L.Ed. 422, in which he approves the discussion of the subject by Lord Shaw in Leyland Shipping Co. v. Norwich Union Fire Ins. Soc., (1918) A.C. 350, 368-371. “Causation is not a chain but a net.” We must seek “the real efficient cause” of the loss. 302 U.S. at pages 562, 563, 58 S.Ct. at page 374. Libelants contend that a special rule of proximate cause is applied in barratry cases; that if barratry is,a cause of the loss, recovery may be had under a policy insuring against barratry, even though the immediate cause of loss may not have been covered by the policy. Whether or not such a special rule exists for barratry cases has been hotly debated in England. See discussion by the various law lords in Cory v. Burr, 8 App. Cas. 393, and by Arnould, sec." }, { "docid": "3075574", "title": "", "text": "THOMSEN, Chief Judge. ' These suits are brought on (A) marine risk and (B) war risk policies to recover for the loss of seven vessels which had been sold by the United States to the Government of the Republic of China (Nationalist Government), subject to mortgages to secure the unpaid balances of purchase price, and were being operated by the Nationalist Government through China Merchants Steam Navigation Company (CMSN), a government-owned corporation. Most of the masters, officers and crews of the seven vessels defected to the Chinese communist regime in January, 1950, ran up the red flag on their respective ships, and held them for the Communist Government. They had previously disobeyed the orders of the owner of the ships by entering or remaining in a British port and refusing to sail to Taiwan or Japan. The insurance, i. e., the policies taken together, covered inter alia losses due to barratry of the masters or mariners or to the consequences of civil war, but excluded capture and seizure. The principal question in each case is whether the loss was caused by “barratry”, or by “seizure”, or by both, as those terms are used and understood in the marine insurance field. The parties are agreed that none of the vessels was “captured”. Libelants contend that the losses were caused by a series of barratrous acts, which were committed for various economic and other personal reasons, or, in the alternative, as a consequence of the civil war in China; that the term “seizure” as used in marine insurance policies, does not include the defection of the master or of the mariners, but requires proof of force, used or threatened, by the armed services or representatives of some government. Alternatively, libelants contend that if both barratry and seizure were causes of the loss, recovery may be based on barratry. Respondents contend that the losses were not caused by barratry, but by seizure of the vessels; that a loss caused by seizure was excluded from coverage, even though barratrous acts preceded the seizure and might also be considered a proximate cause of the loss." }, { "docid": "1224419", "title": "", "text": "of loss was or was not a peril insured against. See e. g., Arcangelo v. Thompson, 2 Camp. 620. But where the ultimate cause of the loss is excluded from coverage by a warranty or an exclusion clause, recovery may not be had on the grounds of barratry. See Cory v. Burr, supra; Swan v. Union Insurance Co., 3 Wheat. 168, 16 U.S. 168, 4 L.Ed. 361. Like the insurance policy in this case, each of the policies in the Republic of China case specifically excluded a loss by seizure. As Judge Thomsen said at 151 F.Supp. 211: “Therefore, if there was a seizure, and if it was the ultimate cause of the loss, there can be no recovery.” There were seven vessels involved in the Republic of China case. After reviewing the facts, Judge Thomsen concluded that insofar as six of them were concerned, the losses had been caused by acts of barratry and were therefore covered by the insurance policy. Relying on the opinion of Chief Justice Bigelow in Greene v. Pacific Mutual Life Ins. Co., 9 Allen 217, 91 Mass. 217 (1864), Judge Thomsen found that there had been no seizure of these six vessels as that term has been interpreted by English and American law. Insofar as the seventh vessel was concerned, Judge Thomsen concluded that there had been a seizure, and that therefore the loss of the seventh vessel was not covered by the insurance policies. On appeal, the Fourth Circuit, in an opinion by Judge Soper, affirmed Judge Thomsen insofar as his findings and conclusions on the six vessels were concerned, but reversed his finding and conclusion as to the seventh vessel. Judge Soper also relied on the Greene case in concluding that the term “seizure” does not include a violent taking of possession of a ship by its mutinous crew. 254 F.2d at 185. However, the Fourth Circuit found that like the other six ships, the seventh had also involved a breach of trust, which amounted to a barratrous taking rather than a seizure. This Court concludes that both Judge Thomsen and Judge" }, { "docid": "1224417", "title": "", "text": "defected in January 1950 to the Chinese Communist regime. The masters and crews ran up the Red flag on their respective ships and held the vessels for the Communist government. They had previously disobeyed orders of the owner of the ships by entering or remaining in a British port and by refusing to sail to Taiwan or Japan. As stated by Judge Thomsen: “The principal question in each case is whether the loss was caused by ‘barratry’, or by ‘seizure’, or by both, as those terms are used and understood in the marine insurance field.” 151 F.Supp. at 215. In discussing the issue of proximate causation, Judge Thomsen said the following (151 F.Supp. at 230-231): The general rule of proximate cause is stated in the opinion of Chief Justice Hughes in Lanasa Fruit Steamship & Importing Co. v. Universal Insurance Co., 302 U.S. 556, 58 S.Ct. 371, 82 L.Ed. 422, in which he approves the discussion of the subject by Lord Shaw in Leyland Shipping Co. v. Norwich Union Fire Ins. Soc., (1918) A.C. 350, 368-371. “Causation is not a chain but a net.” We must seek “the real efficient cause” of the loss. 302 U.S. at pages 562, 563, 58 S.Ct. at page 374. Libelants contend that a special rule of proximate cause is applied in barratry cases; that if barratry is a cause of the loss, recovery may be had under a policy insuring against barratry, even though the immediate cause of loss may not have been covered by the policy. Whether or not such a special rule exists for barratry cases has been hotly debated in England. See discussion by the various law lords in Cory v. Burr, 8 App.Cas. 393, and by Arnould, sec. 858, n.32. It would prolong this opinion unduly to review that controversy here. I conclude that where barratry is one of the causes of the loss, if the ultimate cause (such as stranding or capture) is not excluded from coverage by a warranty or an exclusion clause, recovery may be had on the grounds of barratry, whether or not the ultimate cause" }, { "docid": "1224410", "title": "", "text": "1974). The record here establishes that plaintiffs have sustained a loss and would be entitled to recover if that loss were covered by the insurance policy. Defendant has also argued that the facts of this case do not show that barratry occurred. In The Republic of China v. National Union Fire Insurance Co. of Pittsburgh, 151 F.Supp. 211 (D.Md.1957), aff’d in part and rev’d in part, 254 F.2d 177 (4th Cir. 1958), cert. denied, 358 U.S. 823, 79 S.Ct. 38, 3 L.Ed.2d 64 (1958), Chief Judge Thomsen of this Court had occasion to determine whether a loss under certain policies of marine insurance was caused by barratry. Judge Thomsen adopted the classic definition of barratry given by Lord Ellenborough in Earle v. Rowcroft, 8 E. 126, 138 (1806), as follows: “ * * * a fraudulent breach of duty by the master, in respect to his owners; or, in other words, a breach of duty in respect to his owners, with a criminal intent, or ex maleficio, is barratry. And with respect to the owner of the ship or goods, whose interest is to be protected by the policy, it can make no difference in the reason of the thing, whether the prejudice he suffers be owing to an act of the master, induced by motives of advantage to himself, malice to the owner, or a disregard to those laws which it was the master’s duty to obey, and which (or it would not be barratry) his owners relied upon his observing.” Judge Thomsen went on to say the following: The English Marine Insurance Act, 1906, Sch. I, Rule 11, provides: “The term ‘barratry’ includes every wrongful act wilfully committed by the master or crew to the prejudice of the owner, or, as the case may be, the charterer.” This definition is accepted in America as well as in England. Arnould, sec. 839; 1 Phillips on Insurance (5th Ed., N.Y. 1867), sec. 1062; Patapsco Ins. Co. v. Coulter, 3 Pet. 222, 28 U.S. 222, 7 L.Ed. 659; Greene v. Pacific Mutual Ins. Co., 9 Allen 217, 91 Mass. 217. Wilful" }, { "docid": "1224416", "title": "", "text": "United States, 340 U.S. 54, 58, 71 S.Ct. 135, 137, 95 L.Ed.2d 68 (1950). The parties have cited numerous texts and decisions from many different jurisdictions applying principles of proximate causation to particular factual circumstances. Whatever approach may have been taken by courts elsewhere, this Court concludes that in this District and Circuit the controlling law to be applied in a case of this sort was set forth in The Republic of China v. National Union Fire Insurance Co. of Pittsburgh decision of Judge Thomsen, as affirmed in large part by the Fourth Circuit. Indeed, as in this case, the principal issue in Republic of China was the question of proximate causation. In Republic of China, suits had been brought on various marine policies to recover for the loss of seven vessels which had been sold by the United States to the Nationalist government of China, subject to certain mortgages. The ships were being operated by the Nationalist government through a government-owned corporation when most of the masters, officers and crews of the seven vessels defected in January 1950 to the Chinese Communist regime. The masters and crews ran up the Red flag on their respective ships and held the vessels for the Communist government. They had previously disobeyed orders of the owner of the ships by entering or remaining in a British port and by refusing to sail to Taiwan or Japan. As stated by Judge Thomsen: “The principal question in each case is whether the loss was caused by ‘barratry’, or by ‘seizure’, or by both, as those terms are used and understood in the marine insurance field.” 151 F.Supp. at 215. In discussing the issue of proximate causation, Judge Thomsen said the following (151 F.Supp. at 230-231): The general rule of proximate cause is stated in the opinion of Chief Justice Hughes in Lanasa Fruit Steamship & Importing Co. v. Universal Insurance Co., 302 U.S. 556, 58 S.Ct. 371, 82 L.Ed. 422, in which he approves the discussion of the subject by Lord Shaw in Leyland Shipping Co. v. Norwich Union Fire Ins. Soc., (1918) A.C. 350," }, { "docid": "1224428", "title": "", "text": "China case could be applied to that law. Accordingly, Judge Thomsen first concluded that Cory v. Burr stated the law to be applied, and that there could be no recovery if a barratry were followed by a seizure and if seizure were excluded from coverage. Once having determined the law to be applied, Judge Thomsen concluded that there had been no seizure insofar as the six vessels were concerned, while there had been a seizure as to the seventh. These determinations of fact were then applied to the Cory v. Burr rule and coverage was found as to six of the vessels but not as to the seventh. It is also argued by the plaintiffs that the Fourth Circuit did not follow Judge Thomsen’s ruling concerning the application of the proper rule of proximate causation to facts such as those here. Again, this Court would disagree. At page 185 of the Fourth Circuit opinion in the Republic of China case, Judge Soper said the following: The respondent also relies on the decision in Cory v. Burr, 8 App.Cas. 393 (1883). In that case the captain of a ship, disregarding his obligation to the owners in order to serve his own ends, used the vessel in smuggling transactions, and while she was stopped at sea in order to transship the smuggled goods she was taken by a Spanish revenue cutter. It was held that the loss was caused not by the barratry of the master but by the seizure of the ship by the Spanish Government. This holding distinguishes the decision from the instant case where it has been found that the barratrous acts constituted the ultimate and efficient cause of the loss of the Hong Kong ships, since it was brought about by the voluntary acts of the masters and crews in possession and was not compelled by the superior forces of the Communist Government. This is the more clear in the case of the Hai Hsuan [the seventh vessel] since the defection of her crew began on the high seas beyond any possible reach of the communist forces. Relying" }, { "docid": "1224414", "title": "", "text": "the vessel and that there can be no barratry since he participated in the wrongful acts. A similar argument was rejected by Judge Thomsen in the Republic of China case. 151 F.Supp. at 228. The real owners here were the Lubins, and there is no substance to any contention that they were parties to the barratrous acts. The next question presented is whether this policy covers a loss occasioned by barratry. The Yacht Insurance Policy issued by Edinburgh “covers subject to the exclusions and limitation of this policy, against ALL RISKS of physical loss or damage to the property covered from any external cause * * An all-risks clause includes loss for traditional perils of the sea, including barratry of the master or the crew. Gilmore & Black, The Law of Admiralty at 71 (2d Ed. 1975). Thus, if this loss was caused by barratry, plaintiffs are entitled to prevail. The principal defense of defendant is that this loss was caused by seizure, which is not covered by the policy. Specifically excluded under the “EXCLUSIONS” provisions of the policy is “Any claim for loss, damage or expense caused by or resulting from capture, seizure, arrest, restraint or detainment, or the consequences thereof or any attempt thereat, or any taking of vessel by requisition or otherwise, whether in the time of peace or war and whether lawful or otherwise; * * *.” The facts here clearly indicate that there was a seizure of the TEHO by authorities of the government of Colombia. Thus, the critical issue presented is whether the proximate cause of the loss was the barratry that occurred or whether the proximate cause of the loss was the seizure. If the latter, there is no coverage and defendant is entitled to prevail. If the former, plaintiffs would be entitled to judgment, provided, of course, that no other provision of the insurance policy would defeat such recovery. The Supreme Court has defined “proximate cause” in the insurance field as being “that cause which is most nearly and essentially connected with the loss as its efficient cause.” Standard Oil Co. v." }, { "docid": "810440", "title": "", "text": "Co. of Pittsburgh, 151 F. Supp. 211 (D.Md.1957), aff’d in part and rev’d in part, 254 F.2d 177 (4th Cir. 1958), cert. denied, 358 U.S. 823, 79 S.Ct. 38, 3 L.Ed.2d 64 (1958) Chief Judge Thomsen stated at p. 227: If the Captain deviates, or is compelled by the crew to deviate the vessel from its proper course and to put into an unauthorized port in fraud of his or their duty to owners, it is barratry. Thus, if the loss herein was caused by barratry, plaintiffs are entitled to prevail. The marine underwriters contend that the loss was caused by civil war which is not covered by their policy, but is an excluded risk. There is little doubt that barratry, as it is classically defined, occurred and contributed to the loss of the ships. The barratry would not have occurred, however, but for the civil war. The real underlying cause of the loss of the ships was the civil war in Nicaragua. Loss resulting from civil war is not covered by the marine policy. In Republic of China, supra, it was held that the loss, though brought about by barratry, was a consequence of civil war and hence was not covered by the marine risk policy. The Court held that the F.C.&S. Clause “excludes from the coverage of the marine risk policy any barratry which is a consequence of civil war”, .. . 151 F.Supp. 211, 235. The loss of the four Somoza ships was “incurred as a consequence of civil war.” [I]n accord with the reasonable understandings and expectations of the parties, we must attempt to ascertain what the Supreme Court has referred to as the “predominant and determining” or the “real efficient” cause of the loss. See, e. g. Standard Oil Co. of New Jersey v. United States, 340 U.S. 54, 58, 71 S.Ct. 135 [137], 95 L.Ed. 68 (1950); Lanasa Fruit Steamship, supra, 302 U.S. [556] at 565, 58 S.Ct. [371] at 375 [82 L.Ed. 422]. Determination of the proximate cause in these eases is thus a matter of applying common sense and reasonable judgment as" }, { "docid": "810439", "title": "", "text": "revolution, rebellion, insurrection or civil strife arising therefrom. .. The War Risks Clauses include insurance coverage to cover “only those risks which would be covered by the attached Policy (including collision liability) in the absence of the War, Strikes, and Related Exclusions Clause. However, under EXCLUSIONS it is provided that This insurance does not cover any loss, damage or expense caused by, resulting from, or incurred as a consequence of: (f) capture, seizure, arrest, restraint, detainment, or confiscation by the Government of the United States or of the country in which the Vessel is owned or registered. Liability of the Marine Risk Insurers The Marine policy covers barratry. The classic definition of barratry was given by Lord Ellenborough in Earle v. Rowcroft, 8 E. 126, 138 (1806), as follows: ... a fraudulent breach of duty by the Master, in respect to his owners; or, in other words, a breach of duty in respect to his owners with a criminal intent, or ex maleficio, is barratry. In the Republic of China v. National Union Fire Insurance Co. of Pittsburgh, 151 F. Supp. 211 (D.Md.1957), aff’d in part and rev’d in part, 254 F.2d 177 (4th Cir. 1958), cert. denied, 358 U.S. 823, 79 S.Ct. 38, 3 L.Ed.2d 64 (1958) Chief Judge Thomsen stated at p. 227: If the Captain deviates, or is compelled by the crew to deviate the vessel from its proper course and to put into an unauthorized port in fraud of his or their duty to owners, it is barratry. Thus, if the loss herein was caused by barratry, plaintiffs are entitled to prevail. The marine underwriters contend that the loss was caused by civil war which is not covered by their policy, but is an excluded risk. There is little doubt that barratry, as it is classically defined, occurred and contributed to the loss of the ships. The barratry would not have occurred, however, but for the civil war. The real underlying cause of the loss of the ships was the civil war in Nicaragua. Loss resulting from civil war is not covered by the marine policy." }, { "docid": "1224409", "title": "", "text": "seizure is specifically excluded by the insurance policy, plaintiff is not entitled to recover here; and (2) that plaintiffs are not entitled to recover because the loss occurred outside the geographic limits of the policy. For the reasons set forth herein, this Court concludes that defendant is entitled to summary judgment because the proximate cause of the loss was the seizure of the yacht by the government of Colombia. Several preliminary points may be disposed of summarily. Defendant has argued that plaintiffs have failed to establish a loss. There is no merit to this contention. It is undisputed that the TEHO was seized by Colombian authorities on January 17, 1979 and that the yacht has not been returned to the possession of the plaintiffs. Certainly, more than a reasonable period of time has elapsed. Whether this be deemed a constructive loss or a total loss, recovery of the TEHO at this late date is certainly unlikely. See W. Winter, Marine Insurance, at 392 (3d Ed. 1952); J. Goodacre, Marine Insurance Claims, at 575 (1st Ed. 1974). The record here establishes that plaintiffs have sustained a loss and would be entitled to recover if that loss were covered by the insurance policy. Defendant has also argued that the facts of this case do not show that barratry occurred. In The Republic of China v. National Union Fire Insurance Co. of Pittsburgh, 151 F.Supp. 211 (D.Md.1957), aff’d in part and rev’d in part, 254 F.2d 177 (4th Cir. 1958), cert. denied, 358 U.S. 823, 79 S.Ct. 38, 3 L.Ed.2d 64 (1958), Chief Judge Thomsen of this Court had occasion to determine whether a loss under certain policies of marine insurance was caused by barratry. Judge Thomsen adopted the classic definition of barratry given by Lord Ellenborough in Earle v. Rowcroft, 8 E. 126, 138 (1806), as follows: “ * * * a fraudulent breach of duty by the master, in respect to his owners; or, in other words, a breach of duty in respect to his owners, with a criminal intent, or ex maleficio, is barratry. And with respect to the owner" }, { "docid": "1224423", "title": "", "text": "consequence of the barratry as could well be. But still, as Mr. Justice Field says, it was the seizure which brought the loss into existence — it was a case of seizure. Lord Bramwell discussed the issue in these terms (at page 403): Now it is said here that the loss was not from the seizure but that in truth it was from the barratry; and it is ingeniously suggested by Mr. Tyser that the seizure was “an intermediate step,” as he called it. But it was the ultimate and final step which occasioned the loss; and but for the payment of money the ship would have been confiscated, which would have been merely a following up of the seizure. Lord Bramwell then added the following comment (at page 404): But then it is said that when barratry is the causa remota of the loss, it nevertheless may be relied upon without reference to the causa próxima. Now I will say nothing as to any general rule except to express a doubt as to whether what Lord Justice Brett said about that matter is perfectly correct. I have a misgiving about it; but I do not consider it necessary to determine anything of that sort here. It is possible that in some cases, where there has been barratry and a consequent loss within the perils insured against, you might call that a loss by barratry. In my opinion you cannot do so in this case. Call it an ultimate loss if you like, that ultimate loss was caused by a seizure, and that was warranted against. Judge Thomsen adopted and applied the Cory v. Burr rule in the Republic of China case. He concluded that where barratry was one of the causes of the loss, recovery might be had if the ultimate cause were not excluded from coverage by an exclusion clause. 151 F.Supp. at 231. But he pointed out that “where the ultimate cause of the loss is excluded from coverage by a warranty or an exclusion clause, recovery may not be had on the grounds of barratry. See" }, { "docid": "1224424", "title": "", "text": "what Lord Justice Brett said about that matter is perfectly correct. I have a misgiving about it; but I do not consider it necessary to determine anything of that sort here. It is possible that in some cases, where there has been barratry and a consequent loss within the perils insured against, you might call that a loss by barratry. In my opinion you cannot do so in this case. Call it an ultimate loss if you like, that ultimate loss was caused by a seizure, and that was warranted against. Judge Thomsen adopted and applied the Cory v. Burr rule in the Republic of China case. He concluded that where barratry was one of the causes of the loss, recovery might be had if the ultimate cause were not excluded from coverage by an exclusion clause. 151 F.Supp. at 231. But he pointed out that “where the ultimate cause of the loss is excluded from coverage by a warranty or an exclusion clause, recovery may not be had on the grounds of barratry. See Cory v. Burr, supra * * Id. at 231. Plaintiffs contend first that Judge Thomsen “did misstate” the proximate cause rule which should be applied in a case such as the one before him. Plaintiffs argue that the proper rule was the one set forth in Havelock v. Hancill, 3 T.R. 277 (1789) and Earle v. Rowcroft, 8 E. 126 (1806). But these early English cases were in effect overruled by the Cory v. Burr decision. Both of these cases had been brought to the attention of Judge Thomsen since he cited Earle v. Rowcroft and since Cory v. Burr cited Havelock v. Hancill. Moreover, the question whether English or American law should be applied was also considered and discussed by Judge Thomsen in the Republic of China opinion. In this connection, Judge Thomsen said the following (151 F.Supp. at 226): Indeed, the conflict of laws problem is more apparent than real. “The important thing is to secure uniformity of view in a commercial world, which now embraces and long has included more than one" } ]

[ { "docid": "17731120", "title": "", "text": "U.S. 1 (1889). Congress has consented to suits in rem against the United States only in courts other than this one. 28 U.S.C. §§ 1444, 2410 (1970) (foreclosure); 28 U.S.C. §§ 1347, 2409 (1970) (partition); 28 U.S.C. § 2409a (Supp. V 1975) (quiet title); I.R.C. 1954 § 7426(a), as amended (wrongful levy); 43 U.S.C. § 666 (1970) (water rights). Plaintiff thus fails in his contention that he is claiming against a res and not against the United States. Next, or in the alternative, plaintiff contends that the underlying rationale of the Anti-Assignment Act would not be defeated by allowing this suit to proceed. Not so. The Act has three basic objectives: first, to prevent persons of influence from buying up claims which might then be improperly urged upon Government officials; second, to prevent possible multiple payment of claims and avoid the necessity of the investigation of alleged assignments by permitting the Government to deal only with the original claimant; and third, to preserve for the Government defenses and counterclaims which might not be available against an assignee. United States v. Shannon, 342 U.S. 288, 291-92 (1952); United States v. Aetna Surety Co., supra, 338 U.S. at 373. If Valerie Kingsbury has a claim for the money now sought by her father-in-law, she may of course sue on it. But the statute protects the Government from responding to others than Valerie Kingsbury, on her claim. Were plaintiff allowed to sue, the assignment would have to be investigated in the absence of its maker and the Government might have to face a future suit by the author of the assignment. Were Valerie Kingsbury to sue on her own claim, her testimony might be helpful to the .Government on the questions which have not been decided but which might decide the case differently. Note 2 above. A minimum case surely intended to be reached by the Act is that of an assignment made by a convicted criminal on the eve of her flight from justice. In any event, and whatever be the setting, the Act protects the Government from responding to Valerie’s claim" } ]

[ { "docid": "17730062", "title": "", "text": "to the Act have been recognized for certain transfers by operation of law, including voluntary assignments for the benefit of creditors. See United States v. Shannon, 342 U.S. 288, 292, 72 S.Ct. 281, 96 L.Ed. 321 (1952). Defendant argues that the rationale for exceptions to the Act for transfers by operation of law does not apply here. Def.’s Subst. Opp. at 10-11. The exception to the Act for transfers by operation of law was explained in Goodman v. Niblack, 102 U.S. 556, 26 L.Ed. 229 (1880). There, the Supreme Court noted that when a transfer by operation of law is at issue, “there can be no purpose in such cases to harass the government by multiplying the number of persons with whom it has to deal, nor any danger of enlisting improper influences in advocacy of the claim.” Id. at 560. The Supreme Court went on to liken a “voluntary assignment for the benefit of his creditors, which is made by an insolvent debtor of all his effects,” to a transfer in bankruptcy. Id. at 560-61 (emphasis added). Many courts have noted that the purposes of the Act (or its predecessor, the Anti-Assignment Act) include protecting the United States by preventing the multiplication of claims against it and avoiding the possibility of payment to the wrong person. See, e.g., Shannon, 342 U.S. at 293, 72 S.Ct. 281 (“One of Congress’ basic purposes in passing the Act was ‘that the government might not be harassed by multiplying the number of persons with whom it had to deal.’”); Spofford v. Kirk, 97 U.S. 484, 489-90, 24 L.Ed. 1032 (1878) (identifying one of the “frauds and mischiefs [that] led to [the Act’s] enactment” as “the possible presentation of a single claim by more than a single claimant, the original and his assignee, thus raising the danger of paying the claim twice, or rendering necessary the investigation of the validity of an alleged assignment”); Keydata Corp. v. United States, 205 Ct.Cl. 467, 504 F.2d 1115, 1119 (1974) (permitting assignment on grounds that it “will not increase the number of parties with whom the Government" }, { "docid": "784014", "title": "", "text": "an assignee issuer seeks to collect on claims filed by an assignor issuer, and is plainly seeking to collect on behalf of GNMA pools, it would require no extensive investigation to confirm that the assignee issuer is the proper payee. We conclude that the Assignment of Claims Act should not be applied in connection with assignments of issuer status done in accordance with GNMA requirements even when such an assignment has the effect of incidentally passing along a “claim” already filed by the assignor issuer on behalf of the pools. This seems consistent with the rule, applied in a somewhat analogous situation, that absent a change in beneficial ownership, the Act should not bar a shift in formal title to a claim. See Mitchell Canneries, Inc. v. U. S., 77 F.Supp. 498, 504, 111 Ct.Cl. 228 (1948) (partnership assigns claim to corporate successor to partnership); Wells Fargo Bank & Union Trust Co. v. United States, 115 F.Supp. 655, 658 (N.D.Cal.1953), aff’d, 225 F.2d 298 (9th Cir. 1955) (transfer by corporation to sole stockholder); Roomberg v. United States, 40 F.Supp. 621 (E.D.Pa.1941). See also Comment, supra, note 20, 68 Yale L.J. at 521 n.31. This rule has been applied in this circuit, where it has been held that a liquidating distribution by a close corporation to its stockholders of a claim against the government is not subject to the Act. Novo Trading Co. v. Commissioner, 113 F.2d 320, 322 (2d Cir. 1940). There, the court noted that since the assignment merely passed legal title to parties who already owned the entire beneficial interest in the claim, it was not within the evils at which the Act is directed. Id. See also Consolidated Paper Co. v. United States, 59 F.2d 281, 288 (Ct.C1.1932); Kingan & Co. v. United States, 44 F.2d 447, 450-51, 71 Ct.Cl. 19 (1930); United States v. Improved Premises, 204 F.Supp. 868, 871 (S.D.N.Y.1962). We conclude that here, where the beneficial interest also remained unchanged throughout, the result should be the same. Guardian’s motion is granted; the VA’s motion is denied. ON AWARD OF INTEREST On May 8, 1979" }, { "docid": "21618462", "title": "", "text": "the public policy underlying the Assignment of Claims Act. That policy, as set forth by this court’s predecessor in Kingsbury v. United States, 215 Ct.Cl. 136, 563 F.2d 1019 (1977), is threefold: ... first, to prevent persons of influence from buying up claims which might then be improperly urged upon Government officials; second, to prevent possible multiple payment of claims and avoid the necessity of investigation of alleged assignments by permitting the government to deal only with the original claimant; and third, to preserve for the Government defenses and counterclaims which might not be available against an assignee. 563 F.2d at 1024. Here, the government does not allege that a “person of influence” has purchased claims or a lien against the government has been granted, nor has the government asserted that any defenses or counterclaims are imperiled. There is no danger of a multiple payment of claims because FIRREA, Inc. is neither a party to this action nor has asserted any claim against the government. Cf. Westfed Holdings, Inc. v. United States, 52 Fed.Cl. 135, 142-44 (2002)(Assignment of Claims Act violated and partial assignment voided when following commencement of litigation, the thrift’s holding company partially assigned its claim to an individual then made a party to the action). Even if any of the foregoing violated the Act, recourse is not elimination of the claim. The Anti-Assignment Act does not invalidate a claim that is assigned outside its parameters; it treats the claim as though it had not been assigned, looking to the assignor (First Federal or its successor) not the assignee (CT) to pursue it. See Wall Indus., Inc. v. United States, 15 Cl.Ct. 796, 803 (1988), aff'd, 883 F.2d 1027 (Fed.Cir.1989); 7A, Fed. Proc., L.Ed. § 19:150. First Federal and/or its cor porate successors continually possessed the original claim. Breach First Federal filed its Complaint on August 7, 1995. Pursuant to the September 18, 1996 Omnibus Case Management Order in Winstar related cases, First Federal filed its Short Form Motion for Partial Summary Judgment on Liability on February 28, 1997. Pl.App. Ex. 1. The sole issue in that motion" }, { "docid": "21072721", "title": "", "text": "proved applies here.” The defendant relies upon United States v. Gillis, supra; Hager v. Swayne, 149 U. S. 242; John Shillito Co. v. McClung, 51 Fed. 868; Emmons v. United States, 189 Fed. 414, A consideration of these cases discloses, however, that in each one of them there was a voluntary assignment of the claim against the Government to a third party who was a complete stranger to the record. The facts in this case are strikingly analogous to those which gave rise to the case of the Seaboard Air Line Railway v. United States, supra. After the reorganization in this case, the same stockholders were in control of the plaintiff as were in control of Kingan & Co., Ltd., and their stockholdings in the two companies were in the same proportion. In substance therefore there was really no transfer of the subject matter of the claim in question, for, although the bare legal title to the claim might have passed from Kingan & Co., Ltd., to the plaintiff under the deeds referred to in the facts, the equitable ownership of the claim at all times reposed in the same individuals; that is, in the hands of the same stockholders. Clearly, no fraud could be perpetrated upon the Treasury in a transaction of this kind. All of the reasons advanced in Seaboard Air Line Railway v. United States, supra, are alike applicable here, for certainly Congress did not intend to discourage or obstruct an orderly reorganization under the laws of the various States any more than it intended to discourage and obstruct orderly merger or consolidation of corporations under these laws. There is also no probability that the United States could suffer injury in respect of outstanding claims from such a reorganization as is brought about by the facts in this case, and the result would not be more deleterious than 'would follow the claim passing to heirs, devisees, assignees in bankruptcy, or receivers. Accordingly, we are of opinion that the plaintiff is entitled to maintain this suit. Concerning the question of interest on the claims, we are of opinion" }, { "docid": "2963100", "title": "", "text": "than would follow their passing to heirs, devisees, assignees in bankruptcy, or receivers, all of which changes of ownership have been declared without the ambit of the statute. The same principle which required the exceptions heretofore approved applies here.” The defendant relies upon United States v. Gillis, supra; Hager v. Swayne, 149 U. S. 242, 13 S. Ct. 841, 37 L. Ed. 719; John Shillito Co. v. McClung (C. C. A.) 51 F. 868; Emmons v. United States (C. C.) 189 F. 414. A consideration of these eases discloses, however, that in each one of them there was a voluntary assignment of the claim against the government to a third party who was a complete stranger to the record. The facts in this caso are strikingly analogous to those which gave rise to the case of the Seaboard Airline Railway v. United States, supra. After the reorganization in this case, the same stockholders were in control of the plaintiff as were in control of Kingan & Co., Limited, and their stockholdings in tho two companies were in the same proportion. In substance therefore there was really no transfer of the subject-matter of the claim in question, for, although the hare legal title to the claim might have passed from Kingan & Co., Limited, to the plaintiff under the deeds referred to in the facts, the equitable ownership of the claim at all times reposed in the same individuals, that is, in the hands of the same stockholders. Clearly, no fraud could be perpetrated upon the Treasury in a transaction of this kind. All of the reasons advanced in Seaboard Airline Railway v. United States, supra, are alike applicable hero, for certainly Congress did not intend to discourage or obstruct an orderly reorganization under the laws of the various states any more than it intended to discourage and obstruct orderly merger or consolidation of corporations under these laws. There is also no probability that the United States could suffer injury in respect of outstanding claims from such a reorganization as is brought about by the facts in this case, and the" }, { "docid": "350820", "title": "", "text": "the Escrow Agreement violate the public policy underlying the Assignment of Claims Act. That policy, as set forth by this court’s predecessor in Kingsbury v. United States, 215 Ct.Cl. 136, 563 F.2d 1019 (1977), is threefold: (1) “to prevent persons of influence from buying up claims which might then be improperly urged upon Government officials,” (2) “to prevent possible multiple payment of claims and avoid the necessity of investigation of alleged assignments by permitting the government to deal only with the original claimant,” and (3) “to preserve for the Government defenses and counterclaims which might not be available against an assignee.” 563 F.2d at 1024. The first and third criteria are certainly not implicated in this case. Defendant has made no allegation that UPC is a “person of influence” improperly buying up the Seven Shareholders’ claims and, as discussed above, the Escrow Agreement does not give UPC any lien against the Government. Nor has defendant asserted that any government defenses or counterclaims are imperiled by the Escrow Agreement. As for the second criterion, there is no danger of a multiple payment of claims because UPC is not a party to this action and asserts no claim against the Government. As for defendant’s trip to Memphis to take the deposition of UPC’s president, Jack Moore, that action was not unduly prejudicial or burdenspme to the Government. Whatever the deposition produced in terms of evidence, moreover, it obviously did not persuade the Government to implead UPC in this case. Defendant cites this court’s ruling in Westfed Holdings, Inc., et al. v. United States, 52 Fed.Cl. 135 (2002), as “strongly supporting] its argument that the claim-splitting in this case violated the Assignment of Claims Act.” (Defendant’s notice of supplemental authority, April 18, 2002, at 1.) In Westfed (another Wmsíar-related case) a thrift holding compa ny brought a breach of contract suit against the United States and thereafter partially assigned the claim to Dennis I. Simon (an employee of Price Waterhouse LLP). The court made Simon an additional party plaintiff, as assignee of Westfed’s assets for the benefit of its creditors. The assignment of" }, { "docid": "8950041", "title": "", "text": "assert claims for “damages incurred prior to, on or after” it acquired the Ginna plant. J.A., Ex. 1, at 22 (Asset Purchase Agreement § 2.1(p)). The government claims that such an assignment violates the Assignment of Claims Act, which, as the government would have it, is left unaffected by Section 302(b)(3) of the NWPA, unlike the Assignment of Contracts Act. Def.’s Opp’n at 12-17. Rochester Gas and Ginna LLC argue that Section 302(b)(3) of the NWPA supersedes the Assignment of Claims Act as well as the Assignment of Contracts Act. Pl.’s Reply at 8-9. The Assignment of Claims Act generally bars the assignment of claims against the United States: (a) In this section, “assignment” means— (1) a transfer or assignment of any part of a claim against the United States Government or of an interest in the claim; or (2) the authorization to receive payment for any part of the claim. (b) An assignment may be made only after a claim is allowed, the amount of the claim is decided, and a warrant for payment of the claim has been issued. The assignment shall specify the warrant, must be made freely, and must be attested to by 2 witnesses. The person making the assignment shall acknowledge it before an official who may acknowledge a deed, and the official shall certify the assignment. The certificate shall state that the official completely explained the assignment when it was acknowledged. An assignment under this subsection is valid for any purpose. 31 U.S.C. § 3727. The purposes of this Act include preventing purchased claims from being urged improperly against government officials, avoiding possible multiple payment of claims, and preserving government defenses and counterclaims that may not be available against the assignee. See United States v. Shannon, 342 U.S. 288, 291-92, 72 S.Ct. 281, 96 L.Ed. 321 (1952) (quoting United States v. Aetna Surety Co., 338 U.S. 366, 373, 70 S.Ct. 207, 94 L.Ed. 171 (1949)); Kingsbury v. United States, 215 Ct.Cl. 136, 563 F.2d 1019, 1024 (1977). As with the Assignment of Contracts Act, exceptions to the Assignment of Claims Act exist for certain" }, { "docid": "22968063", "title": "", "text": "damages done . . . and . . . have been unwilling to institute or prosecute a damage suit against their Government for something they have no knowledge of.” At the trial respondents admitted that all of the damage had occurred before the claim had been assigned to them, and that they had known of the damage at the time of the assignment. The District Court, however, held the Anti-Assignment Act inapplicable on the ground . that the joinder of the assignors prevented any possible prejudice to the Government, since “[tjhe rights of all of the possible claimants and of the United States will be finally adjudicated in this one suit.” The Court of Appeals affirmed, believing that the assignment had resulted from a “mutual mistake as to the law,” and holding that: ' “Relief is granted, not merely because [respondents] are assignees, nor even because the vendors have been made parties to the suit, but because of the mistake that led to the making of the assignment, which was a part of the consideration for the purchase price paid by [respondents] for the land conveyed to them. The relief is given to the assignees, not as a matter of law, but as a matter of equity because of the mistake involved and the hardship which would otherwise result.” 186 F. 2d 430, 434. We cannot agree.' In our view the judgment is based entirely on the assignment, v/hich falls clearly within the ban. of the Anti-Assignment Act. -We have recently had occasion to review the Act’s purposes. In United States v. Aetna Surety Co., 338 U. S. 366, 373 (1949), we stated that “[i]ts primary purpose was undoubtedly to prevent persons of influence from buying up claims against the /United States, which might then be improperly urged upon officers of the Government,” and that a second purpose was “to prevent possible multiple payment of claims, to make unnecessary the investigation of alleged assignments, and to enable the Government to deal only with the original claimant.” Other courts have found yet another purpose of the statute, namely, to save to" }, { "docid": "21072720", "title": "", "text": "consolidated corporation, and by reason of such consolidation fell heir to a claim against the United States for certain transportation services originally payable to one of the companies entering-into the consolidation, the Government contended that the plaintiff could not maintain the action because of section 3477, Revised Statutes. The Supreme Court, stating that this section of the statutes was intended to prevent frauds upon the Treasury, reiterated the mischiefs designed to be remedied stated in the previous cases, and said: “ We can not believe that Congress intended to discourage, hinder, or obstruct the orderly merger or consolidation of corporations as the various States might authorize for the-public interest. There is no probability that the United States could suiter injury in respect of outstanding claims fi’om such union of interests and certainly the result would not be more deleterious than would follow their passing to heirs, devisees, assignees in bankruptcy, or receivers, all of which changes of ownership have been declared without the ambit of the statute. The same principle which required the exception heretofore proved applies here.” The defendant relies upon United States v. Gillis, supra; Hager v. Swayne, 149 U. S. 242; John Shillito Co. v. McClung, 51 Fed. 868; Emmons v. United States, 189 Fed. 414, A consideration of these cases discloses, however, that in each one of them there was a voluntary assignment of the claim against the Government to a third party who was a complete stranger to the record. The facts in this case are strikingly analogous to those which gave rise to the case of the Seaboard Air Line Railway v. United States, supra. After the reorganization in this case, the same stockholders were in control of the plaintiff as were in control of Kingan & Co., Ltd., and their stockholdings in the two companies were in the same proportion. In substance therefore there was really no transfer of the subject matter of the claim in question, for, although the bare legal title to the claim might have passed from Kingan & Co., Ltd., to the plaintiff under the deeds referred to in" }, { "docid": "784009", "title": "", "text": "that Eastern remained “holder” of the claims at issue here even after it had ceased to be issuer with respect to the pools on behalf of which the claims were made. This last point calls attention to the problematical aspects of the VA’s argument. If Eastern can retain a “holder’s” right to receive payment after having divested itself of an issuer’s duty to pass that payment on to security holders, this anomaly seems to strike at two important foundations of the GNMA mortgage-backed securities program — -first, that the issuer is entitled to receive proceeds from the pools for the purpose of passing them on to security holders; and second that pool mortgages be insured or guaranteed, inter alia, by the VA. In view of this apparent conflict between the Assignment of Claims Act as the VA would apply it here and these aspects of the GNMA program, it seems appropriate to inquire whether the purposes of the Act would be served by applying it to claims which would otherwise be transferred as an incident to an assignment of GNMA issuer status. The Act has generally been viewed as having three purposes. It was intended “to prevent persons of influence from buying up claims against the United States, which might then be improperly urged upon officers of the Government”; “to prevent possible multiple paymént of claims, to make unnecessary the investigation of alleged assignments, and enable the Government to deal only with the original claimant”; and “to save to the United States ‘defenses which it has to claims by an assignor by way of set-off, counterclaim, etc., which might not be applicable to an assignee’ ”. United States v. Shannon, 342 U.S. 288, 291-92, 72 S.Ct. 281, 283-84, 96 L.Ed. 321 (1952). See also United States v. Aetna Cas. & Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171 (1949); Goodman v. Niblack, 102 U.S. 556, 560, 26 L.Ed. 229 (1880); Matter of Ideal Mercantile Corp., 244 F.2d 828, 831 (2d Cir. 1957). Despite the broad language of the Act, numerous exceptions to it have been recognized when" }, { "docid": "22968064", "title": "", "text": "for the purchase price paid by [respondents] for the land conveyed to them. The relief is given to the assignees, not as a matter of law, but as a matter of equity because of the mistake involved and the hardship which would otherwise result.” 186 F. 2d 430, 434. We cannot agree.' In our view the judgment is based entirely on the assignment, v/hich falls clearly within the ban. of the Anti-Assignment Act. -We have recently had occasion to review the Act’s purposes. In United States v. Aetna Surety Co., 338 U. S. 366, 373 (1949), we stated that “[i]ts primary purpose was undoubtedly to prevent persons of influence from buying up claims against the /United States, which might then be improperly urged upon officers of the Government,” and that a second purpose was “to prevent possible multiple payment of claims, to make unnecessary the investigation of alleged assignments, and to enable the Government to deal only with the original claimant.” Other courts have found yet another purpose of the statute, namely, to save to the United States “defenses which it has to claims by an as signor by way of set-off, counter claim, etc.,-which might not be. applicable to an assignee.” In the Aetna case’, supra, this Court reaffirmed the principle that the statute does not' apply to assignments by operation of law, as distinguished from voluntary assignments. There can be no doubt that in the present case the assignment was voluntary. The Boshamers were free to sell their land as well as their damage claim to whomever they pleased, or, had they chosen, they could have sold the land and the plaim separately. The voluntary nature of the assignment is reflected, in the fact that one of the respondents testified on cross-examination that he understood that he was “buying a claim against the Government.” That an assignment is voluntary is not an end to' the matter, however. In the ninety-nine-year history of the Anti-Assignment Act, this Court has recognized as exceptions to the broad sweep of the statute two types of voluntary assignments (aside from voluntary assignments made" }, { "docid": "17730063", "title": "", "text": "560-61 (emphasis added). Many courts have noted that the purposes of the Act (or its predecessor, the Anti-Assignment Act) include protecting the United States by preventing the multiplication of claims against it and avoiding the possibility of payment to the wrong person. See, e.g., Shannon, 342 U.S. at 293, 72 S.Ct. 281 (“One of Congress’ basic purposes in passing the Act was ‘that the government might not be harassed by multiplying the number of persons with whom it had to deal.’”); Spofford v. Kirk, 97 U.S. 484, 489-90, 24 L.Ed. 1032 (1878) (identifying one of the “frauds and mischiefs [that] led to [the Act’s] enactment” as “the possible presentation of a single claim by more than a single claimant, the original and his assignee, thus raising the danger of paying the claim twice, or rendering necessary the investigation of the validity of an alleged assignment”); Keydata Corp. v. United States, 205 Ct.Cl. 467, 504 F.2d 1115, 1119 (1974) (permitting assignment on grounds that it “will not increase the number of parties with whom the Government must deal”). The court agrees with defendant that applying the exception to the Act in this case would run counter to the purposes of the Act. The Supreme Court’s statement in Goodman that a transfer by operation of law would not “multiply[ ] the number of persons with whom [the United States] has to deal” makes it clear that the Court in Goodman did not anticipate partial assignments of claims by operation of law. See Goodman, 102 U.S. at 560, 102 U.S. 556. To be sure, the Act permits assignment of “any part of a claim against the United States Government or of an interest in the claim,” see 31 U.S.C. § 3727(a)(1) (2001), but the partial assignments that the Act permits are for allowed claims, not pending claims. See 31 U.S.C. § 3727(b) (2001). Partial assignments of claims that have already been allowed, and for which a warrant for payment has already been issued, do not pose the same danger of complex litigation as partial assignments of pending claims. The conflict over whether Mr." }, { "docid": "784013", "title": "", "text": "set its personal claims against a GNMA issuer off against claims asserted by that issuer on behalf of security holders. The possibility that the government may be faced with multiple claimants is somewhat more troublesome, but we think that, on balance, all interested parties, including the government, are better served by non-application of the Act. A guaranty claim brought by a GNMA issuer is somewhat unique since it is, in a sense, brought in behalf of the government as well as against it. Since GNMA securities are backed by the full faith and credit of the United States, 12 U.S.C. § 1721(g), GNMA is ultimately responsible for insuring that these payments reach security holders. While the issuer may be primarily responsible for such payments, GNMA must pay in the event of issuer insolvency or default. To the extent that application of the Assignment of Claims Act results in non-issuers being the proper payee on such claims, it may increase rather than reduce the chance of double paymient by the government. We also note that where an assignee issuer seeks to collect on claims filed by an assignor issuer, and is plainly seeking to collect on behalf of GNMA pools, it would require no extensive investigation to confirm that the assignee issuer is the proper payee. We conclude that the Assignment of Claims Act should not be applied in connection with assignments of issuer status done in accordance with GNMA requirements even when such an assignment has the effect of incidentally passing along a “claim” already filed by the assignor issuer on behalf of the pools. This seems consistent with the rule, applied in a somewhat analogous situation, that absent a change in beneficial ownership, the Act should not bar a shift in formal title to a claim. See Mitchell Canneries, Inc. v. U. S., 77 F.Supp. 498, 504, 111 Ct.Cl. 228 (1948) (partnership assigns claim to corporate successor to partnership); Wells Fargo Bank & Union Trust Co. v. United States, 115 F.Supp. 655, 658 (N.D.Cal.1953), aff’d, 225 F.2d 298 (9th Cir. 1955) (transfer by corporation to sole stockholder); Roomberg v." }, { "docid": "8950042", "title": "", "text": "of the claim has been issued. The assignment shall specify the warrant, must be made freely, and must be attested to by 2 witnesses. The person making the assignment shall acknowledge it before an official who may acknowledge a deed, and the official shall certify the assignment. The certificate shall state that the official completely explained the assignment when it was acknowledged. An assignment under this subsection is valid for any purpose. 31 U.S.C. § 3727. The purposes of this Act include preventing purchased claims from being urged improperly against government officials, avoiding possible multiple payment of claims, and preserving government defenses and counterclaims that may not be available against the assignee. See United States v. Shannon, 342 U.S. 288, 291-92, 72 S.Ct. 281, 96 L.Ed. 321 (1952) (quoting United States v. Aetna Surety Co., 338 U.S. 366, 373, 70 S.Ct. 207, 94 L.Ed. 171 (1949)); Kingsbury v. United States, 215 Ct.Cl. 136, 563 F.2d 1019, 1024 (1977). As with the Assignment of Contracts Act, exceptions to the Assignment of Claims Act exist for certain financing institutions, 31 U.S.C. § 3727(c), as well as for assignments that occur by operation of law. Tuftco, 614 F.2d at 745. In addition, the government may waive the requirements of the Act, and, in determining whether such a waiver has occurred, courts consider knowledge, assent, and other actions of the government consistent with the terms of assignment. See Tuft-co, 614 F.2d at 745-46; Riviera Fin. of Texas, Inc. v. United States, 58 Fed.Cl. 528, 532 (2003); American Nat’l Bank & Trust Co. of Chicago v. United States, 23 Cl.Ct. 542, 546 (1991). 1. Assignments of pre-existing claims under Standard Contracts. Again, the court must examine the language of Section 302(b)(3) of the NWPA to determine its meaning with relation to the Assignment of Claims Act. See Connecticut Nat’l Bank, 503 U.S. at 253-54, 112 S.Ct. 1146. Section 302(b)(3) refers generally to the rights and duties of a party to the Standard Contract in authorizing those rights and duties to be assignable with transfer of title to SNF and/or HLW. 42 U.S.C. § 10222(b)(3). Generally," }, { "docid": "784010", "title": "", "text": "to an assignment of GNMA issuer status. The Act has generally been viewed as having three purposes. It was intended “to prevent persons of influence from buying up claims against the United States, which might then be improperly urged upon officers of the Government”; “to prevent possible multiple paymént of claims, to make unnecessary the investigation of alleged assignments, and enable the Government to deal only with the original claimant”; and “to save to the United States ‘defenses which it has to claims by an assignor by way of set-off, counterclaim, etc., which might not be applicable to an assignee’ ”. United States v. Shannon, 342 U.S. 288, 291-92, 72 S.Ct. 281, 283-84, 96 L.Ed. 321 (1952). See also United States v. Aetna Cas. & Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171 (1949); Goodman v. Niblack, 102 U.S. 556, 560, 26 L.Ed. 229 (1880); Matter of Ideal Mercantile Corp., 244 F.2d 828, 831 (2d Cir. 1957). Despite the broad language of the Act, numerous exceptions to it have been recognized when these purposes would not be served. It does not, for example, apply to involuntary assignments, United States v. Gillis, 95 U.S. 407, 24 L.Ed. 503 (1877); assignments by operation of law, Erwin v. United States, 97 U.S. 392, 24 L.Ed. 1065 (1878); voluntary assignments for the benefit of creditors, Goodman v. Niblack, supra, 102 U.S. 556, 26 L.Ed. 229; transfers by judicial order, Keydata Corp. v. United States, 504 F.2d 1115, 205 Ct.Cl. 467 (1974); subrogation, United States v. Aetna Cas. & Surety Co., supra; or certain changes in corporate form in which assets are transferred, Seaboard Airline Rwy v. United States, 256 U.S. 655, 41 S.Ct. 611, 65 L.Ed. 1149 (1921) (consolidation); Consolidated Paper Co. v. United States, 59 F.2d 281 (Ct.C1.1932) (merger). See generally, Moore, Federal Practice ¶ 17.09[l.-2] at 17— 100 n.2. As this large number of exceptions suggests, there must be some congruence between the Act and its purposes before it is •applied. In the present case, there seems little danger that “persons of influence” might buy up VA mortgage guaranty" }, { "docid": "21618461", "title": "", "text": "United States, 199 Ct.Cl. 572, 581, 467 F.2d 1343, 1348 (1972) (“Terminal’s assignment to plaintiff of the right to contract proceeds could not, and did not, create any contractual relationship whatsoever between plaintiff and the United States”). Moreover, the various mergers and transformation of ownership of First Federal do not implicate the Assignment of Claims Act because “[t]ransfers or assignments occurring by operation of law are exempt from the Act’s application.” Johnson Controls World Services, Inc. v. United States, 44 Fed.Cl. 334, 343 (1999). See also Patterson v. United States, 173 Ct.Cl. 819, 823-24, 354 F.2d 327, 329-30 (1965). As the court explained in Johnson Controls, “[tjransfers by operation of law include corporate mergers, consolidations, and reorganizations.” Id. at 343 (emphasis added). See also Tuftco Corp. v. United States, 222 Ct.Cl. 277, 614 F.2d 740, 745 (1980) (“Perhaps the most significant exception to the [Assignment of Claims Act] is when transfer of a claim .... is effected by consolidation or merger to the successor of a claimant corporation”). Nor does the assignment of proceeds violate the public policy underlying the Assignment of Claims Act. That policy, as set forth by this court’s predecessor in Kingsbury v. United States, 215 Ct.Cl. 136, 563 F.2d 1019 (1977), is threefold: ... first, to prevent persons of influence from buying up claims which might then be improperly urged upon Government officials; second, to prevent possible multiple payment of claims and avoid the necessity of investigation of alleged assignments by permitting the government to deal only with the original claimant; and third, to preserve for the Government defenses and counterclaims which might not be available against an assignee. 563 F.2d at 1024. Here, the government does not allege that a “person of influence” has purchased claims or a lien against the government has been granted, nor has the government asserted that any defenses or counterclaims are imperiled. There is no danger of a multiple payment of claims because FIRREA, Inc. is neither a party to this action nor has asserted any claim against the government. Cf. Westfed Holdings, Inc. v. United States, 52 Fed.Cl. 135," }, { "docid": "23518987", "title": "", "text": "203 and 41 U.S.C. § 15 invalidate transfers of contracts and assignments of claims against the Government. The statutes serve two purposes. They are primarily intended \"to prevent persons of influence from buying up claims against the United States, which might then be improperly urged upon officers of the Government.” Spofford v. Kirk, 97 U.S. 484, 490 (1878). Second, it is inferred Congress sought to enable the United States \"to deal exclusively with the original claimant instead of several parties,” thereby eliminating the confusion of conflicting demands for payment and the chances of multiple liability. Patterson v. United States, 173 Ct. Cl. 819, 354 F.2d 327 (1965). Shortly after their enactment the statutes were strictly construed to invalidate nearly all assignments. Over time, the courts, sensitive to the purposes of the statutes, exempted from their broad reach certain assignments when it was concluded assignment did not present the danger the statutes were designed to obviate. Accordingly, the courts have held selected assignments to be by operation of law and exempt from the statutes’ prohibition, such as transfers by intestate succession or testamentary disposition, Erwin v. United States, 97 U.S. 392 (1878); by judicial sale, Western Pacific RR. Co. v. United States, 268 U.S. 271 (1925); or by subrogation to an insurer, United States v. Aetna Casualty & Surety Co., 338 U.S. 366 (1949). Perhaps the most significant exception to the statutes recognized thus far is when transfer of a claim or contract is effected by consolidation or merger to the successor of a claimant corporation. Seaboard Airline Ry. v. United States, 256 U.S. 655 (1921); see Consumer’s Ice Co. v. United States, 201 Ct. Cl. 116, 475 F.2d 1161 (1973); I.T.T. Gilfillan, Inc. v. United States, 200 Ct. Cl. 367, 471 F.2d 1382 (1973). Consistent with the situations in which the Anti-Assignment Act has been deemed inapplicable stands the long-recognized principle that \"Despite the bar of the Anti-Assignment statute (41 U.S.C. § 15), the Government, if it chooses to do so, may recognize an assignment.” Maffia v. United States, 143 Ct. Cl. 198, 203, 163 F. Supp. 859, 862 (1958);" }, { "docid": "19696783", "title": "", "text": "on sub-freights is a derivative right which amounts to essentially an agreed assignment of the rights of the charterer in the unpaid freights”). D. Assignment by Operation of Law. Athough we conclude that the SIAA does not repeal the Anti-Assignment Act in respect of maritime claims against the Gov ernment, and that a maritime lien on sub-freights is an assignment within the meaning of the Anti-Assignment Act, we hold nevertheless that the Anti-Assignment Act does not bar Saint John Marine’s claim, because the lien on subfreights is an assignment that is effected by operation of law and does not implicate the dominant policy objectives of the Anti-Assignment Act. As the Supreme Court has explained, the Anti-Assignment Act is intended to prevent a traffic in government claims, which would breed corruption and influence-peddling, and to avoid the proliferation of claims and claimants, which would increase the Government’s risks and burdens in the handling and payment of claims: Its primary purpose was undoubtedly to prevent persons of influence from buying up claims against the United States, which might then be improperly urged upon officers of the Government.... [Another] purpose was to prevent possible multiple payment of claims, to make unnecessary the investigation of alleged assignments, and to enable the Government to deal only with the original claimant. United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 373, 70 S.Ct. 207, 211, 94 L.Ed. 171 (1949) (citations omitted). The Court has noted that “[ojther courts have found yet another purpose of the statute, namely, to save to the United States ‘defenses which it has to claims by an assignor by way of set-off, counter claim, etc., which might not be applicable to an assignee.’ ” United States v. Shannon, 342 U.S. 288, 291-92, 72 S.Ct. 281, 284, 96 L.Ed. 321 (1952) (citation omitted). At one time, the Court construed the Anti-Assignment Act strictly, but “[t]he rig- or of this rule was very early relaxed in cases which were thought not to be productive of the evils which the statute was designed to obviate.” Aetna Casualty, 338 U.S. at 373, 70 S.Ct." }, { "docid": "14891458", "title": "", "text": "cases, however, involve a transfer of the claim by reason of a corporate dissolution, merger or consolidation, or by reason of subrogation via the debtor-surety relationship. Under such conditions, the-transfer of the claim to the successor corporation or to the surety is accomplished by “operation of law”. The transfer in this case was not by “operation of law”. It was accomplished by the voluntary acts of the-parties. The withdrawal of Sutherland from the partnership automatically dissolved that partnership. At that point, by “operation of law”, part of the claim for-refund went to Sutherland. Sutherland then transferred that interest to Naylor. Equally inapplicable are the cases where legal title to the claim is transferred to those who already own the entire beneficial interest therein. Roomberg v. U. S., D.C., 40 F.Supp. 621; Novo Trading Corp. v. C. I. R., 2 Cir., 113 F.2d 320; Mitchell Canneries, v. U. S., 77 F.Supp. 498, 111 Ct.Cl. 228. The plaintiffs did not own the entire beneficial interest in the claim for 1947. Although the language of Goodman v. Niblack, 102 U.S. 556, 26 L.Ed. 229 and some of the earlier cases does not include an assignment such as this among the evils at which the statute is aimed, the more recent words of the Supreme Court emphasize a newer test, that of multiple liability and the possibility of conflicting claims. In Martin v. National Surety Co., 300 U.S. 588, 57 S.Ct. 531, 534, 81 L.Ed. 822, the court stated: “The provisions of the statute making void an assignment or power of attorney by a Government contractor are for the protection of the Government. * * * In the absence of such a rule, the Government would be in danger of becoming embroiled in conflicting claims, with delay and embarrassment and the chance of multiple liability\". (Emphasis supplied.) And in the very recent case of U. S. v. Shannon, 72 S.Ct. 281, 283, the court reviewed the purposes of the act, stating them to be: “ ‘to prevent persons of influence from buying up claims against the United States, which might then be improperly urged" }, { "docid": "350819", "title": "", "text": "successor of a claimant corporation.”). In Dorr-Oliver, Inc. v. United States, 193 Ct.Cl. 187, 432 F.2d 447 (1970), the Court of Claims held that the plaintiffs agreement to pay a third party 10 % of plaintiffs recovery against the United States did “not violate the anti-assignment statute” because the “agreement simply creates contract rights between plaintiff and [the third party] and does not give [the third party] a lien on any recovery against the United States.” 193 Ct.Cl. at 196-97, 432 F.2d 447. That is precisely the situation in the case at bar. The Escrow Agreement does not purport to give UPC a lien on any recovery against the Government, much less an independent right of action against the United States. Any proceeds UPC may receive as a result of this litigation would be pursuant to a contractual arrangement with the Seven Shareholders. See also Standard Federal Bank v. United States, 51 Fed.Cl. 695, 710 (2002) (“An assignment of the proceeds from a claim .... is not an assignment of the claim itself.”). Nor does the Escrow Agreement violate the public policy underlying the Assignment of Claims Act. That policy, as set forth by this court’s predecessor in Kingsbury v. United States, 215 Ct.Cl. 136, 563 F.2d 1019 (1977), is threefold: (1) “to prevent persons of influence from buying up claims which might then be improperly urged upon Government officials,” (2) “to prevent possible multiple payment of claims and avoid the necessity of investigation of alleged assignments by permitting the government to deal only with the original claimant,” and (3) “to preserve for the Government defenses and counterclaims which might not be available against an assignee.” 563 F.2d at 1024. The first and third criteria are certainly not implicated in this case. Defendant has made no allegation that UPC is a “person of influence” improperly buying up the Seven Shareholders’ claims and, as discussed above, the Escrow Agreement does not give UPC any lien against the Government. Nor has defendant asserted that any government defenses or counterclaims are imperiled by the Escrow Agreement. As for the second criterion, there is" } ]

[ { "docid": "22751121", "title": "", "text": "Law 196 (1972). But, more significantly, even if a jury could have ignored the presumption and found defendant guilty because he acted knowingly, we cannot be certain that this is what they did do. As the jury’s verdict was a general one, App. 38, we have no way of knowing that Sandstrom was not convicted on the basis of the unconstitutional instruction. And “[i]t has long been settled that when a case is submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that the conviction be set aside. See, e. g., Stromberg v. California, 283 U. S. 359 (1931).” Leary v. United States, 395 U. S., at 31-32. See Ulster County Court v. Allen, ante, at 159-160, n. 17, and at 175-176 (Powell, J., dissenting); Bachellar v. Maryland, 397 U. S., at 570-571; Carpenters v. United States, 330 U. S., at 408-409; Bollenbach v. United States, 326 U. S., at 611-614. Respondent’s final argument is that even if the jury did rely upon the unconstitutional instruction, this constituted harmless error under Chapman v. California, 386 U. S. 18 (1967), because both defendant’s confession and the psychiatrist’s testimony demonstrated that Sandstrom possessed the requisite mental state. Brief for Respondent 4-13. In reply, it is said that petitioner confessed only to the slaying and not to his mental state, that the psychiatrist’s testimony amply supported his defense, Brief for Petitioner 15-16, and that in any event an unconstitutional jury instruction on an element of the crime can never constitute harmless error, see generally Carpenters v. United States, supra, at 408-409; Bollenbach v. United States, supra, at 614, 615. As none of these issues was considered by the Supreme Court of Montana, we decline to reach them as an initial matter here. See Moore v. Illinois, 434 U. S. 220, 232 (1977); Coleman v. Alabama, 399 U. S. 1, 11 (1970). The Montana court will, of course, be free to consider them on remand if it so desires. Ibid. Accordingly, the judgment of the Supreme Court of Montana is reversed, and the case is remanded for further" } ]

[ { "docid": "342851", "title": "", "text": "471 U.S. at 325-26, 105 S.Ct. at 1977. The Due Process Clause of the Fourteenth Amendment protects against the conviction of an accused except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged. Franklin, 471 U.S. at 313, 105 S.Ct. at 1970; In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). A Sandstrom error in the jury instruction thus “removefs] from the prosecution the burden of proving every element of the crime beyond a reasonable doubt.” Davis, 752 F.2d at 1517. For several years, the Supreme Court declined to resolve the issue of whether a Sandstrom error can be harmless under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Davis v. Kemp, 471 U.S. 1143, 105 S.Ct. 2689, 2690-91, 86 L.Ed.2d 707 (1985) (White, J., dissenting from denial of certiorari); Franklin, 471 U.S. at 325-26, 105 S.Ct. at 1977; Sandstrom, 442 U.S. at 526-27, 99 S.Ct. at 2460-61; Thomas v. Kemp, 766 F.2d 452, 455 (11th Cir.1985), vacated and remanded for further consideration, — U.S. -, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986). In Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983), four justices of the Supreme Court suggested that the harmless error doctrine may never be applicable to a Sandstrom error. Id. at 85-87, 103 S.Ct. at 976-78; Davis, 752 F.2d at 1520. The Court did not resolve the issue, however, until three years later. In Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), the Supreme Court held that the harmless error standard of Chapman, did in fact apply to jury instructions that violated Sandstrom and Franklin. In applying harmless error analysis to Sandstrom violations, this court has identified two situations where the harmless error doctrine can be invoked: (1) where the erroneous instruction was applied to an element of the crime that was not at issue in the trial, or (2) where the evidence as to defendant’s guilt was overwhelming. See Davis, 752 F.2d at 1521. See also Miller v." }, { "docid": "191335", "title": "", "text": "any error in the instructions was harmless. The ease is REMANDED to the district court with instructions that the writ be denied. . We note that the Supreme Court has recently granted certiorari in a case in which it may consider whether a Sandstrom error was harmless. Rose v. Clark, 762 F.2d 1006 (6th Cir.), cert. granted, — U.S. -, 106 S.Ct. 59, 88 L.Ed.2d 48 (1985). JOHNSON, Circuit Judge, dissenting: In Franklin v. Francis, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), the United States Supreme Court held that a jury instruction virtually identical to one given in this case was unconstitutional because a reasonable juror could have understood it to shift to the defendant the burden of proof on the issue of intent. The majority does not reach the issue of whether additional language rendered this instruction constitutionally permissible in the instant case, because the majority holds that, even if the instruction was unconstitutional, any error in the instruction was harmless. In coming to this conclusion, the majority misreads the record of petitioner’s trial in state court. I dissent. I. Constitutionality of the Challenged Instruction It is clear that the challenged instruction in the instant case violated Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and its progeny, and therefore was unconstitutional. As in Franklin, the jury was instructed: “A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted.” A reasonable juror could have understood this instruction to create “a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent once the State had proved the predicate acts.” Franklin, supra, 105 S.Ct. at 1972. The instruction in the instant case was followed by a further instruction, which stated: A specific intent to commit the crime charged in this indictment is an essential element that the State must prove beyond a reasonable doubt. Intent is always a question for the jury, and is ordinarily ascertained by acts and conduct. Intent may" }, { "docid": "1154452", "title": "", "text": "P.2d 368, 195 Mont. 26 (1981). McKenzie then filed a petition for a writ of habeas corpus in federal district court. The district court dismissed the petition and it is from that dismissal that McKenzie timely appeals to this court. We affirm. II. Discussion A. Sandstrom Instructions 1. Standard of Review We review a district court’s decision on a petition for a writ of habeas corpus de novo. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, — U.S. -, 106 S.Ct. 124, 88 L.Ed.2d 101 (1985). The district court’s holding that the constitutional error in giving the Sandstrom instruction was harmless error is a mixed question of law and fact which we review de novo. Fendler v. Goldsmith, 728 F.2d 1181, 1190 n. 21 (9th Cir.1983). 2. Harmless Error A Sandstrom instruction is one that shifts the burden of proof from the prosecution to the defense on an essential element of the criminal offense, such as intent. Sandstrom v. Montana, 442 U.S. 510, 523-24, 99 S.Ct. 2450, 2458-59, 61 L.Ed.2d 39 (1979). The jury instructions given by the trial court in McKenzie’s case contained statements that “the law presumes a person intends the ordinary consequences of his ordinary acts” and that “an unlawful act is done with unlawful intent.” Neither party disputes that these are un constitutional Sandstrom instructions. Therefore, the first issue we address is whether Sandstrom instructions on the element of intent can ever be considered harmless error. Until its recent opinion in Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), the United States Supreme Court had not resolved this question. See Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983). The Court found in Rose that an instruction that impermissibly shifted the burden of proof on intent “is not ‘so basic to a fair trial’ that it can never be harmless.” Rose, 106 S.Ct. at 3107. Furthermore, the Court found that the crucial inquiry is not whether intent was a disputed issue" }, { "docid": "1155403", "title": "", "text": "of law based on the following jury instruction: All homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption. Thus, if the state has proven beyond a reasonable doubt that a killing has occurred, then it is presumed that the killing was done maliciously, but this presumption may be rebutted by either direct or circumstantial evidence, or by both, regardless of whether the same be offered by the defendant, or exists in the evidence of the state. Likewise, if a deadly weapon is handled in a manner so as to make the killing a natural or probable result of such conduct, then there is raised a presumption of malice sufficient to support a conviction of murder in the second degree unless it is rebutted by other facts and circumstances. * * * * * * The question of whether the alleged killing was done with malice is for you to determine from the entire case, and you should look to all the facts and circumstances developed by the evidence to determine whether the state has proven beyond a reasonable doubt the existence of malice. (App. 16-17.) Petitioner challenges this instruction under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), as impermissibly shifting the burden of persuasion from the state to prove malice beyond a reasonable doubt. The United States Supreme Court recently held that the harmless error analysis of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), may be applied when an instruction is challenged under Sandstrom. Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). The question is whether on the whole record the error is harmless beyond a reasonable doubt. Id. at 3108-3109. “[T]he inquiry is whether the evidence was so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.” Id. at 3109 (quoting Connecticut v. Johnson, 460 U.S. 73, 97 n. 5, 103 S.Ct. 969, 983 n. 5, 74" }, { "docid": "1423879", "title": "", "text": "a prosecutor’s misguided remarks were “undesirable or even universally condemned.” Id. (citing Darden v. Wainwright, 699 F.2d 1031, 1036 (11th Cir.1983)). We agree with the observation of the Georgia Supreme Court that “[t]he district attorney’s argument is an obvious overstatement and its factual incorrectness is readily apparent to anyone.” Williams v. State, 250 Ga. at 563, 300 S.E.2d at 308. This observation seems to have been shared by Williams’ attorney who responded during his closing argument to the jury that, “[y]ou and I both know that that’s the farthest thing from the truth there is.” Also, that no objection was made during the prosecutor’s closing argument further supports our belief that the statement was not severe enough to render the sentencing hearing fundamentally unfair. See Brooks, 762 F.2d at 1397 n. 19 (“the lack of an objection is a factor to be considered in examining the impact of a prosecutor’s closing argument.”). Consequently, we deny Williams any relief on this basis. In his sixth claim, Williams claims a Sandstrom error and contends that the trial court’s burden shifting instructions to the jury on the presumption of intended consequences was not susceptible to the harmless error analysis of Rose v. Clark, 478 U.S. 570,106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). The Georgia Supreme Court, on remand from the United States Supreme Court for reconsideration in light of Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), concluded that the trial court’s jury charge violated Sand-strom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). See Williams v. Kemp, 255 Ga. 380, 338 S.E.2d 669 (1986). The state court further concluded that the Sandstrom error was harmless beyond a reasonable doubt. Id. at 388-89, 338 S.E.2d at 675-76. We also conclude that under Rose v. Clark, any error was harmless beyond a reasonable doubt. “This Circuit recognizes harmless error in two situations: (1) where the erroneous instruction was applied to an element of the crime that was not at issue in the trial, or (2) where the evidence of the defendant’s guilt was overwhelming.” Dick" }, { "docid": "1423880", "title": "", "text": "court’s burden shifting instructions to the jury on the presumption of intended consequences was not susceptible to the harmless error analysis of Rose v. Clark, 478 U.S. 570,106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). The Georgia Supreme Court, on remand from the United States Supreme Court for reconsideration in light of Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), concluded that the trial court’s jury charge violated Sand-strom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). See Williams v. Kemp, 255 Ga. 380, 338 S.E.2d 669 (1986). The state court further concluded that the Sandstrom error was harmless beyond a reasonable doubt. Id. at 388-89, 338 S.E.2d at 675-76. We also conclude that under Rose v. Clark, any error was harmless beyond a reasonable doubt. “This Circuit recognizes harmless error in two situations: (1) where the erroneous instruction was applied to an element of the crime that was not at issue in the trial, or (2) where the evidence of the defendant’s guilt was overwhelming.” Dick v. Kemp, 883 F.2d 1448, 1451 (11th Cir.1987) (quoting Dix v. Kemp, 832 F.2d 546 (11th Cir.1987) (en banc)); see also Davis v. Kemp, 752 F.2d 1515, 1521 (11th Cir.) (en banc) (pre-Rose case), cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985). In the instant case, the trial court’s instruction was harmless beyond a reasonable doubt because the evidence of Williams’ guilt was overwhelming. In reaching this conclusion, we are mindful that the proper focus of our inquiry is “whether the evidence of intent, rather than the more inclusive issue of guilt, is overwhelming.” Brooks, 762 F.2d at 1390 (emphasis in original); see also Davis, 752 F.2d at 1521 n. 10 (“the crucial inquiry relates to whether or not there is overwhelming evidence of intent”). “Thus, in many cases, a Sandstrom error as to intent can be found harmless where evidence of intent is overwhelming, even where there is conflicting evidence as to whether the defendant was the killer.” Drake v. Kemp, 762 F.2d 1449, 1454 (11th Cir.1985) (en banc) (citing" }, { "docid": "12072872", "title": "", "text": "court’s failure to instruct on an element of the crime charged can be harmless. See United States v. Valdez, 594 F.2d 725, 729 (9th Cir.1979) (holding that failure to instruct on an essential element was harmless error because the element was so clearly established). Cf. United States v. King, 587 F.2d 956, 966 (9th Cir.1978) (“The failure to instruct on every element of an offense is harmless only if the omitted element is undisputed, and, therefore, its omission could not possibly have been prejudicial.” (Emphasis added)). As these cases illustrate, there is not a clearly preferred answer to the question of whether the failure to instruct on an essential element of the crime charged may be considered harmless error. Still, the inclination in this Circuit, as shown by Glenn, is to not apply harmless error analysis to this type of instructional error. Thus, we are not writing on a clean slate and are constrained by Circuit precedent. However, in the recent case of Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), the Supreme Court discussed the general principles governing when harmless error analysis may be applied. We must determine whether Rose has modified this Circuit’s position taken in Glenn. In Rose, the Court resolved the question which it failed to resolve in Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983): “whether the harmless error standard of Chapman v. California, 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (1967), applies to jury instructions that violate the principles of Sandstrom v. Montana, 442 U.S. 510 [99 S.Ct. 2450, 61 L.Ed.2d 39] (1979), and Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).” Rose, 106 S.Ct. at 3103 (footnote omitted). After reviewing the principles governing application of the harmless error rule, the Court concluded that a Sandstrom error was not \"so basic to a fair trial” that it could never be considered harmless and held that the error at issue — an improper burden-shifting instruction on the element of malice — was in fact harmless. At first glance," }, { "docid": "342862", "title": "", "text": "Franklin held that jury instructions that are unconstitutional under Sandstrom are not cured by the appendage in the instruction that the presumptions \"may be rebutted.” See Franklin, 105 S.Ct. at 1972-73. The Franklin court further held that earlier portions of the jury charge which instruct the jurors that the defendant is presumed innocent, and that the state is required to prove every element of the offense beyond a reasonable doubt, do not \"dissipate\" the Sandstrom error. Id. 105 S.Ct. at 1973-74. . The Supreme Court vacated and remanded Thomas for reconsideration in light of its recent decision in Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). This court in Thomas v. Kemp, 800 F.2d 1024 (11th Cir.1986), reviewed the record in light of Rose and held that the ^Sandstrom error was not harmless. . The harmless error doctrine in Chapman requires that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.\" 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). . Davis was decided before the Supreme Court explicitly held in Rose that the Chapman harmless error doctrine applied to Sandstrom violations. However, the court in Davis applied harmless error analysis to the Sandstrom claim, under then-existing precedent. See Davis, 752 F.2d at 1520-21. . The Supreme Court vacated and remanded Brooks for reconsideration in light of Rose. This court in Brooks v. Kemp, 809 F.2d 700 (11th Cir.1986) (en banc), concluded that harmless error analysis conducted by the en banc court in its previous opinion followed the harmless error doctrine of Chapman and Rose. Id. at 700-01. . For a complete discussion of the facts and the procedural history of Bowen’s case, see Bowen v. State, 241 Ga. 492, 246 S.E.2d 322 (1978); Bowen v. Kemp, 769 F.2d 672, 675 (11th Cir.1985). . The instruction read: The acts of a person of sound mind and discretion are presumed to be the product of the person’s will but the presumption may be rebutted. A person" }, { "docid": "2630314", "title": "", "text": "Sandstrom error is one where \"the State employs evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.” Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985). . Potts relied on an insanity defense at trial. Potts argued that his behavior the day of the murder was so bizarre that it could only be explained as the product of mental illness. It is unclear whether an insanity defense concedes the issue of intent so as to render harmless an erroneous burden shifting instruction on the issue of intent. Compare Connecticut v. Johnson, 460 U.S. 73, 87, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) (plurality opinion) (dictum) (insanity defense may concede issue of intent) with Thomas v. Kemp, 800 F.2d 1024 (11th Cir.1986) (evidence of drug use raises issue as to whether defendant was capable of forming requisite intent). We need not reach this issue, however, because an insanity defense does not preclude harmless error analysis if the evidence of guilt is overwhelming. See Rose v. Clark,—U.S.-, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (remand for harmless error analysis despite insanity defense). While the nature of the defense asserted at trial may be an important factor in the analysis of whether the evidence of intent is overwhelming, in the present case the manner in which Potts killed his victim dispels any doubt that his acts were anything but intentional. . Potts abducted his victim in Cobb County; thus, he was tried and convicted in Cobb County for kidnapping, aggravated assault and armed robbery. Since the murder occurred in Forsyth County, Potts was tried and convicted in Forsyth County for murder." }, { "docid": "1154453", "title": "", "text": "The jury instructions given by the trial court in McKenzie’s case contained statements that “the law presumes a person intends the ordinary consequences of his ordinary acts” and that “an unlawful act is done with unlawful intent.” Neither party disputes that these are un constitutional Sandstrom instructions. Therefore, the first issue we address is whether Sandstrom instructions on the element of intent can ever be considered harmless error. Until its recent opinion in Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), the United States Supreme Court had not resolved this question. See Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983). The Court found in Rose that an instruction that impermissibly shifted the burden of proof on intent “is not ‘so basic to a fair trial’ that it can never be harmless.” Rose, 106 S.Ct. at 3107. Furthermore, the Court found that the crucial inquiry is not whether intent was a disputed issue at trial. Id., 106 S.Ct. at 3109. Instead, it is “whether, ‘on the whole record ... the error ... [is] harmless beyond a reasonable doubt.’” Id. (elipses and brackets in original) (quoting United States v. Hasting, 461 U.S. 499, 510, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96 (1983)). See also Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (‘before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt’); Connecticut v. Johnson, 460 U.S. at 97 n. 5, 103 S.Ct. at 983 n. 5 (Powell, J., dissenting) (in cases of Sandstrom error, ‘the inquiry is whether the evidence was so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption’).” Id. Therefore, Hamilton and Hagler are overruled to the extent that Hamilton formulates an absolute rule against the application of the harmless error doctrine when intent is a" }, { "docid": "342861", "title": "", "text": "reversed the district court. Because we hold that intent ordinarily is at issue when the defendant raises an insanity defense, and that it was in the Dix trial, we agree with the Dix panel that the Sand-strom error at Dix’s trial was not harmless. The district court’s denial of habeas corpus relief on the Sandstrom issue must therefore be reversed, and the case remanded with instructions to grant the writ of habeas corpus, unless the state affords Dix a new trial. No. 84-8327. AFFIRMED. No. 84-8342. REVERSED and REMANDED with instructions. . Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). . The panel affirmed the grant of a new sentencing trial because Bowen had been sentenced to death by a jury drawn from a list which unconstitutionally excluded women. In view of the result we now reach, it is not necessary that the court en banc consider that claim and Bowen’s claim of prosecutorial misconduct. Parts III and IV of the Bowen panel opinion are reinstated. . The Court in Franklin held that jury instructions that are unconstitutional under Sandstrom are not cured by the appendage in the instruction that the presumptions \"may be rebutted.” See Franklin, 105 S.Ct. at 1972-73. The Franklin court further held that earlier portions of the jury charge which instruct the jurors that the defendant is presumed innocent, and that the state is required to prove every element of the offense beyond a reasonable doubt, do not \"dissipate\" the Sandstrom error. Id. 105 S.Ct. at 1973-74. . The Supreme Court vacated and remanded Thomas for reconsideration in light of its recent decision in Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). This court in Thomas v. Kemp, 800 F.2d 1024 (11th Cir.1986), reviewed the record in light of Rose and held that the ^Sandstrom error was not harmless. . The harmless error doctrine in Chapman requires that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.\" 386 U.S." }, { "docid": "1155404", "title": "", "text": "evidence to determine whether the state has proven beyond a reasonable doubt the existence of malice. (App. 16-17.) Petitioner challenges this instruction under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), as impermissibly shifting the burden of persuasion from the state to prove malice beyond a reasonable doubt. The United States Supreme Court recently held that the harmless error analysis of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), may be applied when an instruction is challenged under Sandstrom. Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). The question is whether on the whole record the error is harmless beyond a reasonable doubt. Id. at 3108-3109. “[T]he inquiry is whether the evidence was so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.” Id. at 3109 (quoting Connecticut v. Johnson, 460 U.S. 73, 97 n. 5, 103 S.Ct. 969, 983 n. 5, 74 L.Ed.2d 823 (1983) (Powell, J., dissenting)). Although the Rose Court held that the harmless error inquiry is not necessarily a function of the type of defense raised at trial, in the instant case, because intent was not in issue, the defense raised must be considered to determine if the alleged error was harmless. The sole question at the trial was whether Beck was a participant in the crime, not whether he acted with any particular intent. Assuming that the statement of presumed malice violated Sandstrom, we find the error to be clearly harmless on the record as a whole since we are convinced, beyond a reasonable doubt, that the jury found it unnecessary to rely on the presumption. For the reasons stated above, the judgment of the district court is AFFIRMED. . At trial, Mr. Siegler described confabulation as making things up, or fantasizing, rather than drawing from actual memory. He stated that this usually occurs out of a desire to please the hypnotist, and that it normally occurs only after several sessions." }, { "docid": "633168", "title": "", "text": "ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before RONEY, Chief Judge, GODBOLD, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK and EDMONDSON , Circuit Judges, and HENDERSON , Senior Circuit Judge. PER CURIAM: This case was remanded to this court by the Supreme Court of the United States, — U.S. -, 106 S.Ct. 3325, 92 L.Ed.2d 732 for further consideration in light of Rose v. Clark, 478 U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). In that case the Supreme Court held that a jury instruction in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), was subject to the harmless error inquiry described in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and its progeny. Following the Supreme Court’s remand order, we invited and received supplemental briefs from the parties. We conclude that this circuit’s harmless error analysis of Sandstrom errors, and the harmless error analysis conducted by the en banc court in its previous opinion in this case, follows the traditional harmless error analysis provided for in Chapman and in Rose v. Clark. For the reasons stated in our previous en banc opinion, we conclude that the Sandstrom error in this case is not harmless beyond a reasonable doubt. Accordingly, our previous en banc opinion, which was published at 762 F.2d 1383 (11th Cir.1985), is REINSTATED. KRAYITCH, Circuit Judge, dissenting, in which FAY and EDMONDSON, Circuit Judges, and HENDERSON, Senior Circuit Judge, join: In Rose v. Clark, — U.S.-, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), the Supreme Court determined that in certain cases a Sandstrom burden-shifting instruction, although a constitutional violation, can be harmless beyond a reasonable doubt. The court noted that: “[i]n many cases, the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury.” Id. at 3108 (emphasis in original). The Court then reasoned: No one doubts that the trial court properly could have instructed the jury that it could infer malice" }, { "docid": "2145094", "title": "", "text": "voluntary act. Further, unless you are otherwise instructed with regard to a particular presumption, all presumptions are rebut-table; that is, they may be controverted and overcome by other evidence. Add’l Instr. No. 31, App. at C-21 [at 1563]. Similar instructions were given on the elements of various offenses. While these instructions did not require the jury to conclusively presume intent, they did permit a rational juror to believe that intent could be found without proof by the prosecution, thereby shifting the burden of proof on this issue to the defense. The state does not deny that the instructions contained multiple Sandstrom errors. It argues instead — and every court considering the issue has found — that, because of the unique circumstances of McKenzie’s trial, the errors were harmless beyond a reasonable doubt. Until recently, the question of whether Sandstrom errors could be harmless had not been authoritatively resolved. In Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 3108-09, 92 L.Ed.2d 460 (1986), however, the Supreme Court held that the harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), applied to such errors. In Pope v. Illinois, — U.S. —, 107 S.Ct. 1918, 95 L.Ed.2d 435 (1987), the Court further explicated the proper role of an appellate court in applying Clark’s harmless error analysis. In Pope the Court articulated the test as follows: whether “the facts found by the jury were such that it is clear beyond a reasonable doubt that if the jury had never heard the impermissible instruction its verdict would have been the same.” 107 5.Ct. at 1922 n. 6. Significantly, the Court held that even if the jury did in fact have “the impermissible presumption in mind when it considered the [relevant] element” of the crime, the error would be harmless “if the facts that the jury necessarily found established guilt beyond a reasonable doubt.” Id. at 1922. Once an error of constitutional magnitude is shown, the state has the burden of establishing beyond a reasonable doubt that the error was harmless. Chapman, 386 U.S. at 24, 87" }, { "docid": "6716614", "title": "", "text": "a reasonable doubt. A jury charge which shifts the burden of proof on the issue of intent from the government to a defendant is unconstitutional. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). A conviction based on a Sandstrom violation may be upheld, however, if the error is harmless beyond a reasonable doubt. Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). This Court recognizes a Sandstrom error as harmless in two situations: “(1) where the erroneous instruction was applied to an element of the crime that was not at issue in the trial, or (2) where the evidence as to defendant’s guilt was overwhelming.” Bowen v. Kemp, 832 F.2d 546, 548 (11th Cir.1987) (en banc), cert. denied, 485 U.S. 940, 108 S.Ct. 1120, 99 L.Ed.2d 281 (1988). There can be little doubt that the charge on intent was unconstitutional under Sandstrom, supra, and Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). Accordingly, in order to ascertain whether the Sandstrom error was harmless, this Court must determine whether intent was at issue at the trial and, if so, whether evidence at trial overwhelmingly showed intent to kill. “Both intent and malice are essential elements of the crime of murder in Georgia.” Stephens v. Kemp, 846 F.2d 642, 659 (11th Cir.), cert. denied, 488 U.S. 872, 109 S.Ct. 189, 102 L.Ed.2d 158 (1988). Failure to dispute an essential element of the crime does not automatically remove the issue entirely from the jury’s consideration, thereby rendering a Sandstrom error on the issue harmless. Id. at 660. Moreover, the state’s principal evidence consisted of Cunningham’s confessions. In these confessions, Cunningham stated that he had not intended to kill Crawford; rather, he meant only to knock him out with the wrench, take the money, and run. Although Cunningham did not testify, by introducing these statements into evidence the government placed Cunningham’s intent in issue at trial. The second question in the Sandstrom harmless error analysis is whether the evidence presented at Cunningham’s trial overwhelmingly established his intent to kill. Medical" }, { "docid": "9436030", "title": "", "text": "Tennessee Court of Appeals affirmed the convictions, rejecting Clark’s argument that the malice instruction impermissibly shifted the burden of proof as to malice. Clark then sought ha-beas relief in the federal district court, which, upon review, held the malice instruction was unconstitutional under Sandstrom. Clark v. Rose, 611 F.Supp. 294 (M.D.Tenn.1983). The district court went on to find that the error could not be deemed harmless because Clark had “relied upon a mens rea defense.” Id. at 302. The Court of Appeals for the Sixth Circuit affirmed in an unpublished opinion, 762 F.2d 1006 (1985). The Supreme Court subsequently granted certiorari to answer the question of “whether the harmless error standard of Chapman v. United States, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), applies to jury instructions that violate the principles of Sandstrom v. Montana and Francis v. Franklin ...” — U.S. at-, 106 S.Ct. at 3103. Reviewing the basis of the harmless-error doctrine, the Court, in an opinion by Justice Powell, held that “if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any errors that may have occurred are subject to harmless error analysis.” Id. at-, 106 S.Ct. at 3106. Applying these principles to the case before it, the Court found that “the error at issue here — an instruction that impermissibly shifted the burden of proof on malice — is not ‘so basic to a fair trial’ that it can never be harmless.” Id. (citation omitted). Accordingly, the Court unequivocally held that “Chapman's harmless-error standard applied in cases such as this one.” Id. at -, 106 S.Ct. at 3107-110. Given this standard of review, the Court found that the lower federal court’s ruling, that Sandstrom error could never be harmless where a defendant contests intent, was erroneous. Id. at-, 106 S.Ct. at 3109. Harmless error cases are not dependent on whether the defendant conceded the factual issue on which the error was predicated, rather the question is whether, “‘on the whole record ... the error ... [is] harmless beyond a reasonable doubt.’ ” Id. quoting United" }, { "docid": "342850", "title": "", "text": "en banc consideration to resolve this conflict. We now follow the panel’s decision in Dix, and hold that when a criminal defendant raises an insanity defense, a Sand-strom error ordinarily cannot be harmless on the grounds that intent is not at issue. I. To assist jurors in the difficult task of determining what a defendant intended during the commission of a crime, some courts have instructed jurors that “the law presumes that a person intends the ordi nary consequences of his acts,” see, e.g., Sandstrom, 442 U.S. at 513, 99 S.Ct. at 2453, or that “acts of a person of sound mind and discretion are presumed to be the product of the person’s will.” See, e.g., Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 1969-70, 85 L.Ed.2d 344 (1985); Davis, 752 F.2d at 1517. In Sandstrom and again in Franklin, the Supreme Court held that such instructions unconstitutionally shifted the burden of persuasion from the government to the defendant on the issue of intent. Sandstrom, 442 U.S. at 524, 99 S.Ct. at 2459, Franklin, 471 U.S. at 325-26, 105 S.Ct. at 1977. The Due Process Clause of the Fourteenth Amendment protects against the conviction of an accused except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged. Franklin, 471 U.S. at 313, 105 S.Ct. at 1970; In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). A Sandstrom error in the jury instruction thus “removefs] from the prosecution the burden of proving every element of the crime beyond a reasonable doubt.” Davis, 752 F.2d at 1517. For several years, the Supreme Court declined to resolve the issue of whether a Sandstrom error can be harmless under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Davis v. Kemp, 471 U.S. 1143, 105 S.Ct. 2689, 2690-91, 86 L.Ed.2d 707 (1985) (White, J., dissenting from denial of certiorari); Franklin, 471 U.S. at 325-26, 105 S.Ct. at 1977; Sandstrom, 442 U.S. at 526-27, 99 S.Ct. at 2460-61; Thomas v. Kemp, 766 F.2d 452, 455 (11th Cir.1985)," }, { "docid": "12072873", "title": "", "text": "(1986), the Supreme Court discussed the general principles governing when harmless error analysis may be applied. We must determine whether Rose has modified this Circuit’s position taken in Glenn. In Rose, the Court resolved the question which it failed to resolve in Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983): “whether the harmless error standard of Chapman v. California, 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (1967), applies to jury instructions that violate the principles of Sandstrom v. Montana, 442 U.S. 510 [99 S.Ct. 2450, 61 L.Ed.2d 39] (1979), and Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).” Rose, 106 S.Ct. at 3103 (footnote omitted). After reviewing the principles governing application of the harmless error rule, the Court concluded that a Sandstrom error was not \"so basic to a fair trial” that it could never be considered harmless and held that the error at issue — an improper burden-shifting instruction on the element of malice — was in fact harmless. At first glance, Rose would seem to support application of harmless error analysis in the present case. First, a Sandstrom error and the error at issue here are similar in that they both involve instructional errors on an element of the charged offense. See Glenn, 686 F.2d at 425 (Kennedy, J., dissenting) (“I see no distinction from the defendant’s viewpoint between an instruction presuming an element of the crime, the constitutional error in Sandstrom, and the failure to give an instruction on an element.”). Second, the Court in Rose emphasized “that while there are some errors to which Chapman does not apply, they are the exception and not the rule.” Rose, 106 S.Ct. at 3106. However, a closer reading of Rose supports the conclusion that application of harmless error analysis is not proper in the present case. The Court observed that harmless error analysis would not apply if a trial court directed a verdict for the state in a criminal case. 106 S.Ct. at 3106. The Court concluded, however, that a Sandstrom error was not the equivalent of" }, { "docid": "9436029", "title": "", "text": "v. Warden, Maryland Penitentiary, 744 F.2d 1026 (4th Cir.1984), cert. denied, 473 U.S. 907, 105 S.Ct. 3532, 87 L.Ed.2d 655 (1985). Notwithstanding all of the above, Rose v. Clark, decided July 2, 1986, has now put the issue to rest. In Rose, the defendant was charged with the murder of two persons arising from the same incident. At his state trial in Tennessee, Clark raised the defense that he was insane or, at least, incapable of forming the requisite intent to kill the victims. The trial court instructed the jury on first-degree premeditated and deliberate murder and second-degree murder, which required malice, but not premeditation and deliberation. The court instructed the jury that “[a]ll homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption” and that “if the state has proven beyond a reasonable doubt that a killing occurred, then it is presumed that the killing was done maliciously.” Clark was convicted of one count of first-degree murder and one count of second-degree murder. On state appeal, the Tennessee Court of Appeals affirmed the convictions, rejecting Clark’s argument that the malice instruction impermissibly shifted the burden of proof as to malice. Clark then sought ha-beas relief in the federal district court, which, upon review, held the malice instruction was unconstitutional under Sandstrom. Clark v. Rose, 611 F.Supp. 294 (M.D.Tenn.1983). The district court went on to find that the error could not be deemed harmless because Clark had “relied upon a mens rea defense.” Id. at 302. The Court of Appeals for the Sixth Circuit affirmed in an unpublished opinion, 762 F.2d 1006 (1985). The Supreme Court subsequently granted certiorari to answer the question of “whether the harmless error standard of Chapman v. United States, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), applies to jury instructions that violate the principles of Sandstrom v. Montana and Francis v. Franklin ...” — U.S. at-, 106 S.Ct. at 3103. Reviewing the basis of the harmless-error doctrine, the Court, in an opinion by Justice Powell, held that “if the defendant had counsel and was tried" }, { "docid": "16506960", "title": "", "text": "attack on Passman’s general credibility through evidence admitted in violation of Doyle might have contributed to the guilty verdict. We are guided by language in the Supreme Court’s recent opinions in Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), and United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). In Clark, the Court held that a harmless error analysis could be applied in a case involving a jury instruction unconstitutional under the principles set forth in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The Court stated that “while there are some errors to which Chapman [v. California] [, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705] does not apply, they are the exception and not the rule.” 106 S.Ct. at 3106. The Court continued: [I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless error analysis. The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments. Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed. As we have repeatedly stated, “the Constitution entitles a criminal defendant to a fair trial, not a perfect one.” Id. at 3106-07. The Court in Clark relied in part on its earlier decision in Hasting, which considered a violation of the fifth amendment when a prosecutor referred in closing argument to the failure of the defense to introduce evidence on a particular point, a violation quite similar to that in the case sub judice. The Court of Appeals reversed the conviction without examining the evidence of the defendants’ guilt. The Supreme Court reversed: Since Chapman [v. California] [, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705] the Court has consistently made clear that it is the duty of a reviewing court" } ]

[ { "docid": "8110029", "title": "", "text": "444-445, 79 S.Ct. 921, 3 L.Ed.2d 935, and cases cited; 5 Moore’s Federal Practice (2 Ed. 1951) § 38.10, 1961 Cumulative Supplement, pp. 7 and 8. Since Dick, we have refrained from making determination of the question in at least three cases where the state and federal standards are substantially alike and where the parties assumed that the state test controlled. Ford Motor Co. v. Mondragon, 8 Cir., 271 F.2d 342; Lewis v. Nelson, 8 Cir., 277 F.2d 207; Hanson v. Ford Motor Co., 8 Cir., 278 F.2d 586. The Supreme Court of Nebraska has enunciated the test applied in that state in numerous cases. That Court’s view is typified in the following pronouncements: Graves v. Bednar, 171 Neb. 499, 503, 107 N.W.2d 12, 15: “In Owen v. Moore, 166 Neb. 239, 88 N.W.2d 768, we held: ‘In a case where different minds may reasonably draw different conclusions, or inferences from the adduced evidence, or if there is a conflict in the evidence as to whether or not the evidence establishes negligence or contributory negligence, and the degree thereof, when one is compared with the other, such issues must be submitted to a jury.’ ****** “In Griess v. Borchers, 161 Neb. 217, 72 N.W.2d 820, 822, we held: ‘Negligence is a question of fact and may be proved by circumstantial evidence. All the law requires is that the facts and circumstances proved, together with the inferences that may be legitimately drawn from them, shall indicate, with reasonable certainty, the negligent act complained of. * * Snyder v. Farmers Irr. Dist., 157 Neb. 771, 780-781, 61 N.W.2d 557, 563: “ ‘Where different minds may draw different inferences or conclusions from the facts proved, or if there is a conflict in the evidence, the matter at issue must be submitted to the jury to be determined; but where the evidence is undisputed, and but one reasonable inference can be drawn from the facts, the question is one of law for the court.’ * * * js noi ihe province of this court in reviewing the record in an action at law to" } ]

[ { "docid": "23072106", "title": "", "text": "be filed, it was discovered that a portion of the administrative award had not been deducted from the total award and they concluded that the amount recovered under the 1956-1957 applications , was actually $12,160.20 ($23,995.40 less the administrative award of $11,835.20 under the 1962 applications). The asserted discrepancy was therefore never brought to the attention of the district court and was brought to the attention of this court for the first time in the Secretary’s brief. The appeal on the merits was withdrawn by the Secretary on November 7, 1968 and thereafter he paid claimants $12,-886.12 ($17,181.50 less $4,295.38 which he withheld for attorneys’ fees). We think the Secretary’s objection to the computation of the attorneys’ fees on the $17,181.50 which the Secretary initially certified to the court as the total past-due benefits derived from the court proceedings came too late. It is well settled that stipulations of fact fairly entered into are controlling and conclusive and courts are bound to enforce them. Furniture Forwarders of St. Louis v. Chicago, R. I. & P. R. R., 393 F.2d 537, 539 (8th Cir. 1968); Osborne v. United States, 351 F.2d 111, 120 (8th Cir. 1965); Burstein v. United States, 232 F.2d 19, 22 (8th Cir. 1956). The general rule is that parties are bound by stipulations voluntarily made and that relief from such stipulations after judgment is warranted only under exceptional circumstances. Farmers Co-op. Elevator Ass’n Non-Stock, Big Springs, Neb. v. Strand, 382 F.2d 224, 231 (8th Cir. 1967), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967); Ehlers v. Vinal, 382 F.2d 58 (8th Cir. 1967). While relief may be granted from a stipulation under appropriate circumstances, no showing warranting such relief is made here. See O’Neill v. United States, 411 F.2d 139 (3rd Cir. 1969); Osborne v. United States, supra. See also and compare Hoffman v. Celebrezze, 405 F.2d 833 (8th Cir. 1969), where the court held that the Secretary was not entitled to relief under Fed.R.Civ.P. 60(b) which authorizes relief from judgment for mistake, inadvertence, etc. where six per cent interest on past-due benefits" }, { "docid": "13947855", "title": "", "text": "are such that there is more probability that any defect existed when the product left the defendant’s possession than that it was created by subsequent occurrences. Wojciuk v. United States Rubber Co., supra, p. 52 of 120 N.W.2d. See Kuntz v. McQuade, N.D. 1959, 95 N.W.2d 430, 432. This belt in fact had been on the plaintiff’s combine for almost a year. Neither do we relate the case to those where the apparent cause of the accident is such that the defendant would be solely responsible for any negligence in connection with it. Here the unexplained accident may reasonably be attributed to one or more causes for which the defendant is not responsible and it would be “error to apply the rule as a basis for a permissive inference of negligence.” Boutang v. Twin City Motor Bus Co., 1956, 248 Minn. 240, 244, 80 N.W.2d 30, 36; Lovejoy v. Minneapolis-Moline Power Implement Co., 1956, 248 Minn. 319, 332, 79 N.W.2d 688, 697; Sleezer v. Lang, 1960, 170 Neb. 239, 102 N.W.2d 435, 446. See Farmers Home Mut. Ins. Co. v. Grand Forks Implement Co., supra, p. 318 of 55 N.W.2d. The following cases, among others, are guideline decisions for our conclusion in this one. Jessen v. Schuneman’s, Inc., supra, 246 Minn. 13, 17, 73 N.W.2d 786, 789; Wojciuk v. United States Rubber Co., supra, 19 Wis.2d 224, 120 N.W.2d 47; Hofstedt v. International Harvester Co., supra, 256 Minn. 453, 459-461, 98 N.W.2d 808, 812-813; Young v. Willys Motors Inc., supra, 8 Cir., 271 F.2d 209; Ford Motor Co. v. Mondragon, supra, 8 Cir., 271 F.2d 342; Harward v. General Motors Corp., 1952, 235 N.C. 88, 68 S.E.2d 855; Rexall Drug Co. v. Nihill, supra, 9 Cir., 276 F.2d 637. We are driven to conclude, therefore, that the trial court’s finding that the belt was defective was clearly erroneous within the meaning of Rule 52(a), for on the entire evidence we are “left with the definite and firm conviction that a mistake has been committed”, United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542," }, { "docid": "11921784", "title": "", "text": "of the existence of a hazard with respect to other traffic on the highway, of which he had knowledge or should have had knowledge, it was necessary for the jury to determine whether, in fact, such a hazard did then exist. This was the clear purport of the court’s instruction. In reviewing a trial court’s instructions to the jury, to determine whether or not they correctly set forth the applicable law, we are bound to read and consider the charge as a whole. Jiffy Markets, Inc. v. Vogel, 8 Cir., 340 F.2d 495, 500. Read and examined in the light of this rule, we conclude that the jury was correctly informed on this point. Plaintiff’s second contention is that there is no competent evidence in the record to support the defense of contributory negligence, and it was therefore prejudicial error to submit the issue of contributory negligence to the jury. We are in full accord with plaintiff’s statement that, “ * * *\" where contributory negligence is pleaded as a defense, but there is no evidence to support such defense, it is prejudicial' error to submit that issue to the jury.” See: Giebelman v. Vap, 176 Neb. 452, 126 N.W.2d 673, 678; Arnold v. Lance, 166 Neb. 834, 90 N.W.2d 814; and Anderson v. Nielsen, 162 Neb. 110, 75 N.W.2d 372, 375. However, in reviewing the evidence (having in mind, of course, that the evidence and the inferences to be drawn therefrom must be considered in the light most favorable to the defendant) we reach the same conclusion that the trial court did in his ruling on plaintiff’s motion for new trial (or in the alternative for judgment notwithstanding the verdict). In his unreported memorandum and order overruling said motion, Judge Van Pelt concluded, inter alia: “As is reflected by the jury’s verdict in this case there was evidence from which the jury could determine, and it appears to the court that it did so determine, that plaintiff’s version of the incident was not the correct one.” * * * * *- « “If the other cars were traveling at" }, { "docid": "19834770", "title": "", "text": "v. General Motors Corp., 417 F.2d 859, 864 (8th Cir.1969) succinctly set forth the applicable law as follows: Admissibility of evidence depends upon a foundational showing of substantial similarity between the tests conducted and actual conditions. See, Skogen v. Dow Chemical Co., 375 F.2d 692, 704 (8th Cir.1967); Gillam v. J.C. Penney Co., 341 F.2d 457, 460 (7th Cir.1965); Larson v. Meyer, 161 N.W.2d 165 (N.D.1968); Crecelius v. Gamble-Skogmo, Inc., 144 Neb. 394, 397, 13 N.W.2d 627 (1944). Perfect identity between experimental and actual conditions is neither attainable nor required. Lobel v. American Airlines, 205 F.2d 927, 931 (2d Cir.1953). Dissimilarities effect the weight of the evidence, not admissibility. See, Lever Bros. Co. v. Atlas Assur. Co., 131 F.2d 770 (7th Cir.1942). Finally, the decision whether to admit or exclude evidence of experiments in a particular case rests largely in the discretion of the trial judge and his decision will not be overturned on appeal absent a clear showing of an abuse of discretion. See, e.g., Skogen v. Dow Chemical Co., supra; Ripp v. Riesland, 180 Neb. 205, 141 N.W.2d 840 (1966); Reizenstein v. State, 165 Neb. 865, 87 N.W.2d 560 (1958); Crecelius v. Gamble-Skogmo, Inc., supra. See also Shipp v. General Motors Corp., 750 F.2d 418 (5th Cir.1985). The burden rests on General Motors at trial to lay a proper foundation demonstrating a similarity of circumstances and conditions, Barnes v. General Motors Corp., 547 F.2d 275 (5th Cir.1977). While it is not necessary for General Motors to precisely reproduce all factors existing at the time of the Jordan instance, it is necessary that General Motors reproduce the conditions “in substantial particulars as to afford a fair comparison in respect to the particular issue to which the test is directed,” Barnes, supra at 277. While the admission of the “crash test” films is clearly within the Court’s discretion, Szeliga v. General Motors Corp., 728 F.2d 566 (5th Cir.1984), it is recommended that if General Motors lay the proper foundation at trial that the Court admit the “crash test” into evidence, Shipp v. General Motors Corp., 750 F.2d 418 (5th Cir." }, { "docid": "23604996", "title": "", "text": "3 L.Ed.2d 935 (1959). Prior to Dick, supra, this Circuit was committed to the application of state law in diversity cases where sufficiency of the evidence was at issue. See, Continental Can Company v. Horton, 250 F.2d 637, 640 (8 Cir. 1957); Stofer v. Montgomery Ward & Company, 249 F.2d 285, 289 (8 Cir. 1957); Clay County Cotton Co. v. Home Life Ins. Co. of New York, 113 F.2d 856, 861 (8 Cir. 1940). The current approach taken by this Circuit to this problem was stated by Judge Matthes in Jiffy Markets, Inc. v. Vogel, 340 F.2d 495, 498 (8 Cir. 1965): “Following the cue of the Supreme Court in Dick, we have found it unnecessary to reach out and decide this question in a number of cases, e. g. Ford Motor Company v. Mondragon, 271 F.2d 342, 345 (8 Cir. 1959) ; Bennett v. Wood, 271 F.2d 349, 351 (8 Cir. 1959); Lewis v. Nelson, 277 F.2d 207, 209, 210 (8 Cir. 1960); Wray M. Scott Co. v. Daigle, 309 F.2d 105 (8 Cir. 1962); Hanson v. Ford Motor Co., 278 F.2d 586 (8 Cir. I960).” It was unnecessary to decide whether the federal or state standard of sufficiency applied in the cases cited in Jiffy Markets, supra, because in several cases the parties assumed the state standard was applicable and in all cases the state and federal standards were substantially sim ilar. In the case at bar, the parties apparently assume the state standard applied. And, as noted by us in Grand Island Grain Company v. Roush Mobile Homes Sales, Inc., 391 F.2d 35, 41 (8 Cir. 1968), the standard applied in Nebraska to test the sufficiency of the evidence to support a jury verdict is substantially the same as the federal standard applied by this Court. The Supreme Court of Nebraska in Presho v. J. M. McDonald Co., 181 Neb. 840, 151 N.W.2d 451, 453 (1967), in reviewing a motion for a directed verdict said: “A motion for directed verdict or its equivalent must for the purposes of decision thereon be treated as an admission of the" }, { "docid": "17980319", "title": "", "text": "F.2d at 1203. And practical experience as well as academic training and credentials may be the basis of qualification. Grain Dealers Mut. Ins. Co. v. Farmers Union Coop. Elevator & Shipping Ass’n., 377 F.2d 672, 679 (10 Cir. 1967); cf. United States v. Atkins, supra. See also Mathine v. Kansas-Nebraska Natural Gas Co., Inc., 189 Neb. 247, 202 N.W.2d 191 (1972). Whether a witness is qualified to testify as an expert is normally within the discretion of the trial court. See, e. g., Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962); United States v. Atkins, supra; White v. United States, 399 F.2d 813 (8 Cir. 1968); Rhynard v. Filori, 315 F.2d 176 (8 Cir. 1963). However, as this court observed in Twin City Plaza, Inc. v. Central Surety & Insurance Corp., 409 F.2d 1195, 1203 (8 Cir. 1969): “If the witness, based upon his background skill, possesses extraordinary training to aid laymen in determining facts and if he bases his answer upon what he believes to be reasonable scientific or engineering certainty, generally the evidence should be admitted, subject, of course, to the cross-examination of the adversary. The weaker the scientific opinion or the less qualified the expert, the more vigorous will be the cross-examining attack and undoubtedly the less persuasive will be the opinion to the trier of fact.” In the instant case we believe Stungis possessed sufficient knowledge and practical experience to make him well qualified as an expert witness. The failure to permit his testimony resulted in prejudicial damage to plaintiff’s attempt to prove causation. We refuse to speculate, as defendant urges, as to whether plaintiff could have proved a submissible case with Stungis’ testimony. To answer this question requires resolution of a hypothetical record not before us. This we have no power to do. We reverse and remand for a new trial. . The suit was originally filed in February 1968. It was subsequently dismissed without prejudice after the same suit was refiled on June 3, 1971." }, { "docid": "7752939", "title": "", "text": "it has been observed that “if the information presented entities one to a directed verdict, a summary judgment is in order.” Lundeen v. Cordner, 354 F.2d 401, 407 (8th Cir. 1966), motion to amend denied, 356 F.2d 169. The issue of whether the Federal standard or the State standard, under the doctrine of Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), is controlling on the sufficiency of evidence to withstand a directed verdict in a diversity case has never been decided • by the Supreme Court. First, in Dick v. New York Life Insurance Company, 359 U.S. 437, 444-445, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959), and subsequently in Mercer v. Theriot, 377 U.S. 152, 156, 84 S.Ct. 1157, 12 L. Ed.2d 206 (1964), the Court has left the question unresolved. The Circuit Courts are split on the issue. 5A Moore’s Federal Practice Para. 50.06, pp. 2347-2350, n. 5-6 (2d ed. 1971). The majority view is that the Federal standard applies. Cooper, Directions for Directed Verdicts: A Compass for Federal Courts, 55 Minn.L.Rev. 903, 974, n. 212 (1971) (hereinafter Cooper); Mull v. Ford Motor Company, 368 F.2d 713, 716, n. 4 (2d Cir. 1966). This view also is favored by most of the commentators who have passed upon the issue. E. g., 5A Moore’s Federal Practice, supra, Para. 50.06; 2B Barron & Holtzoff, Federal Practice and Procedure, § 871.1, pp. 17-19 (Wright ed. 1961). But see Cooper, supra-, Morgan, Choice of Law Governing Proof, 58 Harv.L.Rev. 153, 171-177 (1944). Prior to the Dick case, the Eighth Circuit took the minority position that the pertinent State standard was applicable. Schneider v. Chrysler Motors Corporation, 401 F.2d 549, 554 (8th Cir. 1968); Hanson v. Ford Motor Company, 278 F.2d 586, 589, n. 1 (8th Cir. 1960). Subsequently the Circuit Court has expressly said that the question is open. Grand Island Grain Company v. Roush Mobile Home Sales, Inc., 391 F.2d 35, 41 (8th Cir. 1968). In post-Dick cases the issue has been left unresolved because the parties have invariably assumed that the State standard applies" }, { "docid": "23604997", "title": "", "text": "1962); Hanson v. Ford Motor Co., 278 F.2d 586 (8 Cir. I960).” It was unnecessary to decide whether the federal or state standard of sufficiency applied in the cases cited in Jiffy Markets, supra, because in several cases the parties assumed the state standard was applicable and in all cases the state and federal standards were substantially sim ilar. In the case at bar, the parties apparently assume the state standard applied. And, as noted by us in Grand Island Grain Company v. Roush Mobile Homes Sales, Inc., 391 F.2d 35, 41 (8 Cir. 1968), the standard applied in Nebraska to test the sufficiency of the evidence to support a jury verdict is substantially the same as the federal standard applied by this Court. The Supreme Court of Nebraska in Presho v. J. M. McDonald Co., 181 Neb. 840, 151 N.W.2d 451, 453 (1967), in reviewing a motion for a directed verdict said: “A motion for directed verdict or its equivalent must for the purposes of decision thereon be treated as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.” The view of this Court is substantially similar; as expressed in Thompson v. Lillehei, 273 F.2d 376, 378 (8 Cir. 1959): “In testing the legal sufficiency of the evidence to make a submissible case, * * * we are required to view and consider all of the evidence from the standpoint most favorable to plaintiffs, and give to them the advantage of every fair and reasonable intendment that the evidence can justify.” However, a plaintiff “ * * * is not entitled to the benefit of unreasonable inferences, or inferences at war with undisputed facts.” Lewis v. Nelson, 277 F.2d 207, 210 (8 Cir. 1960). With the evidence viewed in the above perspective the trial court must make the following determination as stated by the Supreme Court of Nebraska" }, { "docid": "16467387", "title": "", "text": "a matter of state law, procedural matters regarding the submission of requested instructions are governed by federal law. See generally 1A, Pt. 2 J. Moore, Moore’s Federal Practice H 0.314(2) (2d ed. 1979). Each party is entitled to have the jury instructed on its theory of the case if there is any competent evidence in support of such theory and the instruction is properly requested, even though the theory may be controverted by some evidence of the opposing party. See Ninio v. Hight, 385 F.2d 350, 352 (10th Cir. 1967) (applying Colorado law); Zakrzewski v. Hyronimus, 81 S.D. 428, 136 N.W.2d 572, 574 (1965). This also holds true where the jury was instructed on the party’s alternate theory of the case. Frankel v. Todd, 393 F.2d 435, 440 (3d Cir. 1968) (applying Pennsylvania law); Jahnig v. Coisman, 283 N.W.2d 557, 561 (S.D.1979). Refusal to instruct the jury on each material theory is reversible error. Flentie v. American Community Stores Corp., 389 F.2d 80, 82 (8th Cir. 1968) (applying Iowa law); Miller v. Baken Park, Inc., 84 S.D. 624, 175 N.W.2d 605, 609, modified, 85 S.D. 133, 178 N.W.2d 560 (1970). Conversely, it is reversible error to submit to the jury an issue as to which there is no evidence. Scott v. Conroy, 577 F.2d 13 (8th Cir. 1978) (applying Missouri law); Sheffield v. Eveleth, 17 S.D. 461, 97 N.W. 367 (S.D.1903). See Jennings v. Hodges, 80 S.D. 582, 129 N.W.2d 59, 64 (S.D.1964). Although plaintiff states that there was no competent evidence as to Bartak’s contributory negligence, the testimony summarized above would tend to show that Bartak knew or should have known that it was dangerous for him to enter the dead space. Rather, her argument amounts to an assertion that the above evidence was controverted. These facts were in dispute; the contributory negligence issue could not be withdrawn from the jury. Because we must assume on appeal that this evidence was true, it warranted the giving of an instruction on contributory negligence. Defendants put in evidence on the defense of contributory negligence and made proper requests for instructions on" }, { "docid": "3261486", "title": "", "text": "answers to the preceding questions. We do not infer that the jury failed to give the same type of consideration to the other questions. EVIDENTIARY MATTERS The driver’s testimony, crucial to the plaintiff’s case, came in by way of deposition. On cross-examination of the driver, counsel for General Motors developed evidence that Von-Hubright had been treated for a nervous breakdown in a mental institution for about three months in 1955 and again for the same period of time in 1956. It is generally accepted that the permissible scope of cross-examination to test the accuracy or credibility of a witness rests with the trial judge and his rulings will not be disturbed except for clear abuse of discretion. See, e. g., Grain Dealers Mut. Ins. Co. v. Farmers Union Co-op Elevator & Shipping Ass’n, 377 F.2d 672 (10th Cir. 1967); Lewis v. United States, 373 F.2d 576 (9th Cir.), cert. denied, 389 U.S. 880, 88 S.Ct. 116, 19 L.Ed.2d 173 (1967); Marteney v. United States, 218 F.2d 258 (10th Cir. 1954), cert. denied, 348 U.S. 953, 75 S.Ct. 442, 99 L.Ed. 745 (1955); Erving v. State, 174 Neb. 90, 116 N.W.2d 7 (1962); Washington v. State, 160 Neb. 385, 70 N.W.2d 378 (1955). The courts, particularly those in the federal system, recognize that a witness’ previous mental incapacity serves as a proper subject for cross-examination to determine credibility. See, United States v. Allegretti, 340 F.2d 254 (7th Cir. 1964), cert. denied, 381 U.S. 911, 85 S.Ct. 1531, 14 L.Ed.2d 433 (1965); cf., United States v. Mucherino, 311 F.2d 172 (4th Cir. 1962). As we read the pertinent part of the record reproduced below, plain tiff conceded that testimony relating to hospitalization might bear on “credibility” and pressed his objection only to the question calling for the cause of hospitalization. The latter question and answer appropriately served to clarify Von-Hubright’s prior testimony and fell within the latitude possessed by the trial judge to control the course of the trial proceedings. We cannot say that the trial court abused its discretion by admitting such testimony. In submitting his conclusion on the issue of" }, { "docid": "3546281", "title": "", "text": "for defendant if the evidence shows beyond a reasonable dispute that the plaintiff has been guilty of contributory negligence and that such negligence is more than slight as compared with defendant’s negligence. Thomison v. Buehler, 147 Neb. 811, 25 N.W.2d 391, 393. But if on all the evidence reasonable minds might fairly differ in their conclusion as to the existence of contributory negligence or as to its degree being more than slight in the circumstances, the question is for the jury to determine. Surface v. Safeway Stores, Inc., 8 Cir., 169 F.2d 937, 939-940 (Neb.). Cf., Halliday v. Raymond, 147 Neb. 179, 181, 22 N.W.2d 614; Meyer v. Platte Valley Const. Co., 147 Neb. 860, 863, 25 N.W.2d 412; Raile v. Toews, supra, 165 Neb. at pages 187-188, 84 N.W.2d at pages 201-202. The trial court here submitted the issue of plaintiff’s contributory negligence to the jury under proper instructions, including an instruction on the doctrine of comparative negligence under which plaintiff is not barred from recovery where his contributory negligence is slight and the negligence of defendant is gross in comparison. The test under Nebraska’s comparative negligence stat ute is not based upon absolute degrees of negligence but rather upon a comparative test of the relative degrees of negligence between the parties. Andelt v. County of Seward, 157 Neb. 527, 60 N.W.2d 604; Roby v. Auker, 151 Neb. 421, 37 N.W.2d 799. Tested by this rule we hold the question of plaintiff’s contributory negligence was one of fact and was properly submitted to the jury. The court did not err in denying defendant’s motion for directed verdict. Defendant argues that plaintiff on this appeal for the first time cites Section 48-425, R.R.S., Neb., 1943, (set out above) and is now changing the theory upon which this case was tried, from common law negligence to statutory negligence. Defendant contends that this theory is not now available to plaintiff because the case was not tried upon that theory. This rule, while it may be invoked by an appellee, is not available to an appellant. All intendments must be indulged in favor" }, { "docid": "12651479", "title": "", "text": "not the federal rule in civil cases (see, e. g., Ford Motor Co. v. Mondragon, 271 F.2d 342 (8 Cir. 1959); Coca Cola Bottling Co. v. Hubbard, 203 F.2d 859 (8 Cir. 1953)) nor is it any longer followed in federal criminal cases (see Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954) and discussion in McClard v. United States, 386 F.2d 495, 507 n. 5 (8 Cir. 1968) (dissenting opinion)). The language in Petraoek quoted in the text has not been overruled by the Nebraska Supreme Court. Although other Nebraska eases seemingly contradict these principles, until the Nebraska court specifically overrules Davis v. Dennert, supra, we consider it as being the correct statement of the law in Nebraska. The Nebraska law set forth in Howell v. Robinson Iron & Metal Co., 173 Neb. at 449, 113 N.W.2d at 587 and again approved in Petracek v. Haas O. K. Rubber Welder’s, Inc., 176 Neb. at 445, 126 N.W.2d at 469, and the federal rule are the same. The Nebraska court there said: “The burden of establishing a cause of action by circumstantial evidence requires that such evidence, to be sufficient to sustain a verdict or require submission of a case to a jury, shall be of such character and the circumstances so related to each other that a conclusion fairly and reasonably arises that the cause of action has been proved.” The federal rule is well expressed in Ford Motor Co. v. McDavid, 259 F.2d 261, 266 (4 Cir., 1958): “The old notion that a jury should not be allowed to draw any inference from circumstantial evidence, if the one is as probable as the other, has fallen into discard and has been replaced by the more sensible rule that it is the province of the jury to resolve conflicting inferences from circumstantial evidence. Permissible inferences must still be within the range of reasonable probability, however, and it is the duty of the court to withdraw the case from the jury when the necessary inference is so tenuous that it rests merely upon speculation and" }, { "docid": "12651477", "title": "", "text": "Court for the Northern District of Texas, Prof. Thomas F. Green, Jr., Dean Charles W. Joiner, Judge Simon E. Sobeloff, United States Court of Appeals (4 Cir.), Judge Robert Van Pelt, United States District Court for the District of Nebraska, Judge Jack B. Weinstein, United States District Court for the Eastern District of New York, David Berger, Hicks Epton, Robert S'. Erdahl, Egbert L. Haywood, Frank G. Raichle, Herman F. Selvin, Craig Spangenberg and Edward Bennett Williams. . We are not directly confronted at this time with whether the evidence was sufficient to make a prima facie case to the jury. As indicated, the plaintiff did not explore his total case because of the objections raised. On the surface, it would appear that if plaintiff’s experts were allowed to answer the questions, a prima facie case would exist under Nebraska Law. Cf. Wray M. Scott Co. v. Daigle, 309 F.2d 105 (8 Cir. 1962). In any event we do not decide this here. We therefore are not confronted with the issue whether the rule governing the sufficiency of evidence is one of federal or state law. Cf. Denneny v. Siegel, 407 F.2d 433 (3 Cir. Feb. 20, 1969); Wratchford v. S. J. Groves & Sons Co., 405 F.2d 1061 (4 Cir. 1969). In the past we have avoided this decision on the assumption that the particular state law and the federal law are the same. See, e. g., Grand Island Grain Co. v. Roush Mobile Home Sales, Inc., 391 F.2d 35 (8 Cir. 1968). However, contrary to our previous observations, the law in Nebraska may not be the same as our federal rules governing sufficiency of evidence. Compare Davis v. Dennert, 162 Neb. 65, 75 N.W.2d 112 (1956), and then subsequently, Chief Justice White’s excellent concurring opinion in Wolstenholm v. Kaliff, 176 Neb. 358, 366, 126 N.W.2d 178, 183 (1964), where he challenges the resurrection of the preDavis rule (overruled in Davis). As pointed out in Davis, the rule requiring proof justifying only one inference or conclusion comes from the criminal law necessitating proof beyond a reasonable doubt. This is" }, { "docid": "12447163", "title": "", "text": "hypotheticals. II. The sufficiency of the evidence. With the hypotheticals eliminated the plaintiff’s case becomes almost impossibly thin. Nevertheless, the plaintiff asserts that it was still entitled to get to the jury. Inasmuch as the fire and all events connected with it occurred in Nebraska, the parties appear to assume that the substantive law of that state controls. Once again, we observe that the question whether state or federal law prevails on the issue of sufficiency of the evidence remains an open question. Dick v. New York Life Ins. Co., 359 U.S. 437, 444-445, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959). In our cases arising from Nebraska we have concluded that federal and Nebraska standards are substantially the same. Wray M. Scott Co. v. Daigle, 309 F.2d 105, 107-109 (8 Cir. 1962); Chicago B. & Q. R. R. v. Beninger, 373 F.2d 854, 856 (8 Cir. 1967); Farmers Co-op. Elevator Ass’n v. Strand, 382 F.2d 224, 228 (8 Cir. 1967), cert. denied 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659. We have outlined those standards in these cases. They are well known and accepted and need not all be repeated here. We mention only two which concern circumstantial evidence: in order to get to the jury the circumstances proved, together with the inferences legitimately to be drawn from them, shall indicate with reasonable cer tainty the negligent act charged; if such evidence is susceptible to any other reasonable inference, inconsistent with the inference of negligence, it is not sufficient to carry the case to the jury. Graves v. Bednar, 171 Neb. 499, 107 N.W.2d 12, 15 (1960); Bedford v. Herman, 158 Neb. 400, 63 N.W.2d 772, 774 (1954); Ford Motor Co. v. Mondragon, 271 F.2d 342, 345 (8 Cir. 1959) ; Wray M. Scott Co. v. Daigle, supra, pp. 108-109 of 309 F.2d. We feel that the plaintiff has not sustained this burden. All that has been said above with respect to the hypothetical applies here. There are too many facts left unproved or which, though proved, are no more than circumstantial and support inferences inconsistent with the plaintiff’s" }, { "docid": "17980318", "title": "", "text": "testify whether the lower ball joint post was worn, whether the ball was set in the socket straight, whether the wear patterns were uniform, whether he could distinguish between a wear produced condition and one that was produced by an accident, or whether he had an opinion on how the wear oceurred. The trial judge believed Stungis was “unquestionably qualified to do repair work” but he was not “qualified metallurgically-wise, or to demonstrate cause.” A witness may be qualified as an expert based upon his knowledge, skill, experience, training or education. See generally Hill v. Gonzalez, 454 F.2d 1201 (8 Cir. 1972); Harris v. Smith, 372 F.2d 806 (8 Cir. 1967); Skyway Aviation Corp. v. Minneapolis, Northfield & Southern Railway Co., 326 F.2d 701 (8 Cir. 1964); cf. United States v. Atkins, 473 F.2d 308 (8 Cir. 1973); Rules of Evidence for United States Courts and Magistrates, Rule 702, 56 F.R.D. 183, 282 (1972). The test is whether the witness’ training and experience demonstrate a knowledge of the subject matter. Hill v. Gonzalez, supra, 454 F.2d at 1203. And practical experience as well as academic training and credentials may be the basis of qualification. Grain Dealers Mut. Ins. Co. v. Farmers Union Coop. Elevator & Shipping Ass’n., 377 F.2d 672, 679 (10 Cir. 1967); cf. United States v. Atkins, supra. See also Mathine v. Kansas-Nebraska Natural Gas Co., Inc., 189 Neb. 247, 202 N.W.2d 191 (1972). Whether a witness is qualified to testify as an expert is normally within the discretion of the trial court. See, e. g., Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962); United States v. Atkins, supra; White v. United States, 399 F.2d 813 (8 Cir. 1968); Rhynard v. Filori, 315 F.2d 176 (8 Cir. 1963). However, as this court observed in Twin City Plaza, Inc. v. Central Surety & Insurance Corp., 409 F.2d 1195, 1203 (8 Cir. 1969): “If the witness, based upon his background skill, possesses extraordinary training to aid laymen in determining facts and if he bases his answer upon what he believes to" }, { "docid": "2230399", "title": "", "text": "therefore the amendment may be treated as a Rule 60(b) motion made within one year. We note initially that the plaintiffs’ motion for leave to amend the complaint fell within the discretionary power of the trial court. Fed.R.Civ. P. 15(a). Failure to grant such a motion to amend is ordinarily not reversible error. See Freeman v. Continental Gin Company, 381 F.2d 459, 467 (5th Cir. 1967); Groninger v. Davison, 364 F.2d 638, 640 (8th Cir. 1966); Standard Title Insurance Co. v. Roberts, 349 F.2d 613, 622 (8th Cir. 1965). See generally 3'\" Moore, Federal Practice ;¶15.08[4] (2d ed. 1968). Further, the amendment, if granted in this case, would not have “related back” to the original complaint to satisfy the “not more than one year” requirement of 60(b). An amendment to a pleading relates back only when the claim asserted therein arises “out of the conduct, transaction or occurrence set forth * * * in the original pleading. * * *” Fed.R.Civ.P. 15(c); Bufalino v. Michigan Bell Telephone Company, 404 F.2d 1023, 1028 (6th Cir. 1968), cert. denied, 394 U.S. 987, 89 S.Ct. 1468, 22 L.Ed.2d 763 (1969). See also Crowder v. Gordons Transports, Inc., 387 F.2d 413 (8th Cir. 1967). The substance of the plaintiffs’ proposed amendment concerned the mistake attendant to the earlier dismissal. The initial complaint in this action, however, alleged defendants’ antitrust violations, not mistake in the dismissal of the earlier lawsuit. Assuming, arguendo, that plaintiffs’ presentation to the trial court in response to the motions for a summary dismissal of the action constituted an application for 60(b) relief to set aside the earlier dismissal as having been entered by mistake, the trial court was not bound to grant that relief for two reasons. First, Rule 60 (b) motions address themselves to the sound discretion of the trial court and will not be overturned absent an abuse of that discretion. Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir. 1969); Farmers Co-operative Elevator Association Non-Stock of Big Springs, Nebraska v. Strand, 382 F.2d 224, 232 (8th Cir.), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d" }, { "docid": "23072107", "title": "", "text": "R. R., 393 F.2d 537, 539 (8th Cir. 1968); Osborne v. United States, 351 F.2d 111, 120 (8th Cir. 1965); Burstein v. United States, 232 F.2d 19, 22 (8th Cir. 1956). The general rule is that parties are bound by stipulations voluntarily made and that relief from such stipulations after judgment is warranted only under exceptional circumstances. Farmers Co-op. Elevator Ass’n Non-Stock, Big Springs, Neb. v. Strand, 382 F.2d 224, 231 (8th Cir. 1967), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967); Ehlers v. Vinal, 382 F.2d 58 (8th Cir. 1967). While relief may be granted from a stipulation under appropriate circumstances, no showing warranting such relief is made here. See O’Neill v. United States, 411 F.2d 139 (3rd Cir. 1969); Osborne v. United States, supra. See also and compare Hoffman v. Celebrezze, 405 F.2d 833 (8th Cir. 1969), where the court held that the Secretary was not entitled to relief under Fed.R.Civ.P. 60(b) which authorizes relief from judgment for mistake, inadvertence, etc. where six per cent interest on past-due benefits was awarded and all parties agreed to this but there was no statutory provision for the government to pay interest. The court said that “it is generally held that neither ignorance nor carelessness on the part of an attorney will provide grounds for 60(b) relief.” 405 F.2d at 835. In United States v. Righter, 400 F.2d 344, 351 (8th Cir. 1968), we said: “In its reply brief here the government asserts that if we remand, ‘even-handedness would require that the Government, on remand, be relieved of its stipulation as to the value of the 316 shares’. We regard that stipulation, in contrast to the one as to the two figures, as flat and decisive. It reads, ‘The fair market value of said 316 shares of stock one year after the decedent’s death was $379,200’. We are not free to disregard it.” In United States v. Star Construction Co., 186 F.2d 666, 669 (10th Cir. 1951), the court said: “We are of the opinion that the United States Attorney, both by his statement in open court" }, { "docid": "16467386", "title": "", "text": "law, it will be treated as such in a diversity action in a federal court of that state. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1272 at 317 (1969). When contributory negligence is pleaded as an affirmative defense, under South Dakota law, the burden is on the defendant to put in evidence on that theory. Cf. Thomas v. St. Mary’s Roman Catholic Church, 283 N.W.2d 254, 259 (S.D.1979) (assumption of risk as a defense); see Smith v. Chicago, Minneapolis & St. Paul Ry., 4 S.D. 71, 55 N.W. 717 (1893). Contributory negligence and comparative negligence are questions of fact which, in South Dakota, may be withdrawn from jury considerations only when the facts are not in dispute and those facts lead to one inescapable conclusion. Schultz & Lindsay Construction Co. v. Erickson, 352 F.2d 425, 432 (8th Cir. 1965) (applying South Dakota law); Ricketts v. Tusa, 87 S.D. 702, 214 N.W.2d 77, 79 (1974); Myers v. Quenzer, 79 S.D. 248, 110 N.W.2d 840, 843 (1961). Although the substance of instructions is a matter of state law, procedural matters regarding the submission of requested instructions are governed by federal law. See generally 1A, Pt. 2 J. Moore, Moore’s Federal Practice H 0.314(2) (2d ed. 1979). Each party is entitled to have the jury instructed on its theory of the case if there is any competent evidence in support of such theory and the instruction is properly requested, even though the theory may be controverted by some evidence of the opposing party. See Ninio v. Hight, 385 F.2d 350, 352 (10th Cir. 1967) (applying Colorado law); Zakrzewski v. Hyronimus, 81 S.D. 428, 136 N.W.2d 572, 574 (1965). This also holds true where the jury was instructed on the party’s alternate theory of the case. Frankel v. Todd, 393 F.2d 435, 440 (3d Cir. 1968) (applying Pennsylvania law); Jahnig v. Coisman, 283 N.W.2d 557, 561 (S.D.1979). Refusal to instruct the jury on each material theory is reversible error. Flentie v. American Community Stores Corp., 389 F.2d 80, 82 (8th Cir. 1968) (applying Iowa law); Miller v. Baken Park, Inc.," }, { "docid": "2230400", "title": "", "text": "cert. denied, 394 U.S. 987, 89 S.Ct. 1468, 22 L.Ed.2d 763 (1969). See also Crowder v. Gordons Transports, Inc., 387 F.2d 413 (8th Cir. 1967). The substance of the plaintiffs’ proposed amendment concerned the mistake attendant to the earlier dismissal. The initial complaint in this action, however, alleged defendants’ antitrust violations, not mistake in the dismissal of the earlier lawsuit. Assuming, arguendo, that plaintiffs’ presentation to the trial court in response to the motions for a summary dismissal of the action constituted an application for 60(b) relief to set aside the earlier dismissal as having been entered by mistake, the trial court was not bound to grant that relief for two reasons. First, Rule 60 (b) motions address themselves to the sound discretion of the trial court and will not be overturned absent an abuse of that discretion. Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir. 1969); Farmers Co-operative Elevator Association Non-Stock of Big Springs, Nebraska v. Strand, 382 F.2d 224, 232 (8th Cir.), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967). Further, plaintiffs here failed to timely present their claim under the rigid one-year time restriction for correction of a judgment or order entered by mistake. Rinieri v. News Syndicate Co., 385 F.2d 818 (2d Cir. 1967); Boehm v. Office of Alien Property, 120 U.S.App.D.C. 100, 344 F.2d 194 (1965); Benton v. Vinson, Elkins, Weems & Searls, 255 F.2d 299 (2d Cir. 1958); Collins v. City of Wichita, Kansas, 254 F.2d 837 (10th Cir. 1958). Plaintiffs also argue that 60(b) authorizes aggrieved persons to seek relief from a judgment or order entered by mistake or excusable neglect either through motion or an independent equitable action; and that courts have treated either type of proceeding substantively similar where justice so required. Here, however, the proposed amendment was an ineffective attempt to obtain equitable relief. Although the one-year limitation of Rule 60(b) will not necessarily bar relief from a judgment through an equitable action (In Re Casco Chemical, 335 F.2d 645 (5th Cir. 1964); West Virginia Oil & Gas Co. v. George E. Breece Lumber Co.," }, { "docid": "12651478", "title": "", "text": "the sufficiency of evidence is one of federal or state law. Cf. Denneny v. Siegel, 407 F.2d 433 (3 Cir. Feb. 20, 1969); Wratchford v. S. J. Groves & Sons Co., 405 F.2d 1061 (4 Cir. 1969). In the past we have avoided this decision on the assumption that the particular state law and the federal law are the same. See, e. g., Grand Island Grain Co. v. Roush Mobile Home Sales, Inc., 391 F.2d 35 (8 Cir. 1968). However, contrary to our previous observations, the law in Nebraska may not be the same as our federal rules governing sufficiency of evidence. Compare Davis v. Dennert, 162 Neb. 65, 75 N.W.2d 112 (1956), and then subsequently, Chief Justice White’s excellent concurring opinion in Wolstenholm v. Kaliff, 176 Neb. 358, 366, 126 N.W.2d 178, 183 (1964), where he challenges the resurrection of the preDavis rule (overruled in Davis). As pointed out in Davis, the rule requiring proof justifying only one inference or conclusion comes from the criminal law necessitating proof beyond a reasonable doubt. This is not the federal rule in civil cases (see, e. g., Ford Motor Co. v. Mondragon, 271 F.2d 342 (8 Cir. 1959); Coca Cola Bottling Co. v. Hubbard, 203 F.2d 859 (8 Cir. 1953)) nor is it any longer followed in federal criminal cases (see Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954) and discussion in McClard v. United States, 386 F.2d 495, 507 n. 5 (8 Cir. 1968) (dissenting opinion)). The language in Petraoek quoted in the text has not been overruled by the Nebraska Supreme Court. Although other Nebraska eases seemingly contradict these principles, until the Nebraska court specifically overrules Davis v. Dennert, supra, we consider it as being the correct statement of the law in Nebraska. The Nebraska law set forth in Howell v. Robinson Iron & Metal Co., 173 Neb. at 449, 113 N.W.2d at 587 and again approved in Petracek v. Haas O. K. Rubber Welder’s, Inc., 176 Neb. at 445, 126 N.W.2d at 469, and the federal rule are the same. The Nebraska court" } ]

[ { "docid": "11747401", "title": "", "text": "The amended complaint names as a defendant the Board of Education of Lin-denhurst Union Free School District, but does not name any of its members in either their official or personal capacities. It is beyond dispute that there is no cause of action for damages under 42 U.S.C. § 1983 for damages against a school board or its members in their official capacities. Mazza v. Hendrick Hudson Cent. Sch. Dist., 942 F.Supp. 187, 192 (S.D.N.Y.1996) (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)); see also Gentile v. Wallen, 562 F.2d 193, 195 (2d Cir.1977), Mazurek v. Wolcott Bd. of Educ., 815 F.Supp. 71, 77 (D.Conn.1993). Plaintiffs offer no argument in opposition to this proposition. See Plaintiffs’ Memorandum of Law in Opposition, at 5. Therefore, the motion of defendant Board of Education is GRANTED in its entirety, and all claims against the Board are DISMISSED. B. Statute of Limitations for Counts III and IV The applicable statute of limitations for intentional infliction of emotional distress, alleged in Count III, is one year. See Ornstein v. Pakistan Int’l Airlines Corp., 888 F.Supp. 28, 31 (S.D.N.Y.1995). Moreover, where, as here, a plaintiff alleges prima facie tort in order to overcome the strictures of a less favorable statute of limitations, courts do not hesitate to dismiss the prima facie tort claim. See Jones v. City of New York, 161 A.D.2d 518, 519, 555 N.Y.S.2d 788, 789 (1st Dep’t 1990); Milone v. Jacobson, 78 A.D.2d 548, 549, 432 NY.S.2d 30, 31 (2d Dep’t 1980). This action was filed on April 19, 1996. All of the actions of the defendants which are alleged to have constituted intentional infliction of emotional distress and prima facie tort occurred prior to the April 20, 1995 decision by the panel, that is, sometime in March and April of 1994. Despite plaintiffs’ arguments that these claims survive under the “doctrine of continuing wrongs,” see Leonhard v. United States, 633 F.2d 599, 613 (2d Cir.1980), these claims are barred by the applicable statutes of limitation. Even if the Court were to" } ]

[ { "docid": "8934700", "title": "", "text": "BOGGS, Circuit Judge. Plaintiffs are a class of former employees of defendant General Motors Corporation (General Motors) and their spouses. Because the spouses’ claims are derived from the employees’ claims, we shall use the term “plaintiffs” to refer to the employees only, unless the facts and the law of this case require us to distinguish between the plaintiffs-employees and the plaintiffs-spouses. At all times relevant to this dispute, the plaintiffs were members of defendant International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers and of defendant Local 801 of that union (collectively, “the union”). In a prior action in the United States District Court for the Southern District of Ohio, plaintiffs brought a hybrid unfair representation/unfair labor practices claim against General Motors and the union, pursuant to the Labor Management Relations Act (LMRA) § 301, 29 U.S.C. § 185, and the Labor-Management Reporting and Disclosure Act (LMRDA) § 101(a)(1), 29 U.S.C. § 411(a)(1). See generally Adkins v. General Motors Corp., 556 F.Supp. 452 (S.D.Ohio 1983) (motion to dismiss); Adkins v. General Motors Corp., 573 F.Supp. 1188 (S.D.Ohio 1983) (motion for summary judgment), aff'd in part, remanded in part, 769 F.2d 330 (6th Cir.1985). In that case, plaintiffs alleged, in substance, that General Motors and the Union had colluded in negotiating a collective-bargaining agreement in order to abrogate the special seniority rights contained in a collective-bargaining agreement called the “bridge agreement.” We will discuss the nature of this agreement and the plaintiffs’ rights under it more fully later in this opinion. In the same action, plaintiffs also pursued pendent state law claims for breach of contract, tortious interference with contract rights, intentional infliction of emotional distress, and loss of consortium. The federal labor law claim was dismissed with prejudice as untimely. The pendent state law claims were dismissed without prejudice, for lack of a substantial federal question to support the exercise of jurisdiction over state law claims. After the dismissal, many of the same plaintiffs filed a complaint in state court alleging fraud, tortious interference with contract rights, and intentional infliction of emotional distress, thereby initiating the case now before" }, { "docid": "23267570", "title": "", "text": "to perform one job as an assembly line worker. She performed this task for over five years. Plaintiff’s treating physician stated that her responsibilities at work should be limited to “simplified job duties that can be concretely defined.” Anderson alleges that she was hired under this special medical restriction and that her employer and union subsequently disregarded it when they required her to work at seven different jobs. She claims that defendants’ indifference to her needs proximately caused her to suffer from an anxiety disorder accompanied by panic attacks. Having carefully reviewing these facts in a light most favorable to plaintiff, we believe that defendants’ alleged conduct may reasonably be regarded as sufficiently “extreme and outrageous” at this stage of the case. The court will give Anderson the benefit of the doubt at this point. UAW and GM argue that count IV of plaintiff’s amended complaint is preempted by federal labor law under either §§ 7 or 8 of the National Labor Relations Act (hereinafter “NLRA”), 29 U.S.C. §§ 157-58, or under § 301 of the Labor Management Relations Act (hereinafter “LMRA”), 29 U.S.C. § 185, because plaintiff’s claim relates to a provision in the collective bargaining agreement. Anderson asserts that the collective bargaining agreement need not be examined and interpreted for the trier of fact to make a determination of whether defendants intentionally inflicted her with emotional distress. Not every state law claim relating in some way to a provision in a collective bargaining contract is necessarily preempted by the NLRA or LMRA. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S.Ct. 1904, 1911, 85 L.Ed.2d 206 (1985); Mitchell v. Pepsi-Cola Bottlers, Inc., 772 F.2d 342, 346 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986); Sutton v. Southwest Forest Indus., Inc., 628 F.Supp. 1034, 1035 (D.Kan.1985). The court has a duty to balance the legitimate and substantial interests of the state in protecting its citizens against the potential for interference with the federal scheme of regulation. Farmer v. United Bhd. of Carpenters & Joiners, 430 U.S. 290, 304, 97 S.Ct. 1056, 1065," }, { "docid": "4500516", "title": "", "text": "that plaintiffs’ counsel would be inadequate as class counsel, the Court finds further that plaintiffs’ counsel is qualified and able to represent the class and has demonstrated his willingness to do so. The motion to deny class certification is therefore denied. 4. Motion to dismiss the claim for legal fees pursuant to New York Labor Law § 198 New York Labor Law § 198 (McKinney 2009) states, in pertinent part, that “[i]n any action instituted upon a wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee reasonable attorney’s fees ____” § 198(l)(a). The defendants aver that “the plaintiffs request legal fees invoking N.Y. Labor Law See. 198. Yet, such claim does not state or present a cognizable theory of law because it has been preempted by Garcia v. Allied Parking Sys., 300 A.D.2d 219, 752 N.Y.S.2d 316 (1st Dep’t., 2002), ....” Def. Mem. at 17. Notwithstanding the fact that a judicial decision does not preempt a state statute, this misconstrues Garda. The court in that case considered a claim for attorney’s fees stemming from a dispute over whether employees had been properly compensated pursuant to a collective bargaining agreement. To the extent that the claims in Garda required interpretation of the collective bargaining agreement, the state causes of action, including the claim for attorney’s fees, were preempted by the Labor-Management Relations Act, 29 U.S.C. § 185 et seq. Because Garcia is clearly inapposite here, the defendants’ motion is meritless and is denied. 5. Motion to strike the plaintiffs’ answer as untimely After the defendants filed their answer with counterclaims against the plaintiffs on October 18, 2007, the parties stipulated that the plaintiffs would have until November 19, 2007, to reply to those counterclaims or file a motion to dismiss. See Docket No. 7. The plaintiffs filed a timely motion to dismiss the second, third, and fourth counterclaims by that November 19 deadline but did not file their reply to the first counterclaim until December 17, 2007. The defendants argue that the reply to the first counterclaim was untimely as it" }, { "docid": "16304229", "title": "", "text": "employment. Accordingly, I respectfully recommend that plaintiffs breach of contract claim against defendant CSAM be dismissed for failure to state a cause of action. 2. Intentional Infliction of Emotional Distress Plaintiffs fourth claim for relief alleges that “[t]he actions of defendant CSAM constitute an intentional infliction of severe emotional distress.” (Complaint ¶ 228) In New York, a plaintiff suing for the intentional infliction of emotional distress must assert his or her claim within one year of the acts giving rise to the tort. N.Y. Civ. Prac. L. & R. 215(3) (McKinney 1994); Campbell v. Grayline Air Shuttle, Inc., 930 F.Supp. 794, 803 (E.D.N.Y.1996); Misek-Falkoff v. International Bus. Mach. Corp., 162 A.D.2d 211, 556 N.Y.S.2d 331, 331 (1st Dep’t), appeal denied, 76 N.Y.2d 708, 560 N.Y.S.2d 990, 561 N.E.2d 890 (1990). In the instant case, plaintiffs claim for intentional infliction of emotional distress is based on CSAM’s decision to terminate his employment. That termination took place on October 1, 1993, over nineteen months before plaintiff commenced this action on May 8, 1995. Accordingly, plaintiffs claim for intentional infliction of emotional distress is time-barred. Moreover, under New York law, a plaintiff claiming intentional infliction of emotional distress must prove four elements: (1) conduct that goes beyond “all possible bounds of decency;” (2) intention to cause distress, or knowledge that defendant’s conduct would result in emotional distress; (3) severe emotional distress; and (4) a causal link between the defendant’s conduct and plaintiffs distress. Gay v. Carlson, 60 F.3d 83, 89 (2d Cir.1995) (citing Richard L. v. Armon, 144 A.D.2d 1, 536 N.Y.S.2d 1014, 1015 (2d Dep’t 1989)). The standard for stating a claim of intentional infliction of emotional distress is very high, requiring an allegation of conduct “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Martin v. Citibank, N.A, 762 F.2d 212, 220 (2d Cir.1985) (quoting Fischer v. Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d 991, 993, 373 N.E.2d 1215, 1217 (1978)). Thus, New York courts routinely dismiss causes" }, { "docid": "7393450", "title": "", "text": "the fair representation claim on the ground that the CBA did not cover sex discrimination. Perugini may also be able to prevail on her duty of fair representation claim if she can demonstrate that the Union failed to represent her when they would have represented a temporarily-disabled male. See 5 U.S.C. § 7114(a)(1)(1988). Perugini’s complaint does allege that the Union acted in a discriminatory manner by failing to protect her employment with Safeway because of her sex. That allegation is sufficient to inject a sex discrimination issue into her claim for breach of the duty of fair representation. C. Preemption of the Emotional Distress Claims Section 301(a) of the LMRA provides federal jurisdiction over “[s]uits for violation of contracts between an employer and a labor organization.” 29 U.S.C. § 185(a)(1988). A suit for breach of a collective-bargaining agreement is governed exclusively by federal law under section 301. Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 23, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983). Consequently, “if the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law ... is pre-empted and federal labor-law principles ... must be employed to resolve the dispute.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 1881, 100 L.Ed.2d 410 (1988). Thus, Perugini’s emotional distress claims are preempted if they can be resolved only by referring to the terms of the CBA. See Newberry v. Pacific Racing Ass’n, 854 F.2d 1142, 1146-47 (9th Cir.1988). Under California law: [t]he elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Cervantez v. J.C. Penney Co., 24 Cal.3d 579, 593, 595 P.2d 975, 983, 156 Cal.Rptr. 198, 206 (1979). To be outrageous, .conduct" }, { "docid": "10536487", "title": "", "text": "§ 215(3); Peters v. Citibank, N.A., 677 N.Y.S.2d 626, 626 (2d Dep’t 1998). The one-year period is not tolled by the pendency of a charge with the EEOC. See, e.g., Casper, 1998 WL 150993, at *5. Here, Michetti left F & K’s employ in June 1994. She did not commence this lawsuit until August 2, 1995, which is approximately two months after the expiration of the statute of limitations. Michetti concedes as much but counters that defendants have waived the right to assert the defense of the statute of limitations by not raising it in their Answer. Her counter-argument, in turn, returns us to defendants’ argument that plaintiffs did not plead claims of IIED in accordance with FED.R.CrvP. 8(a)(2). This is because defendants contend that they had no notice of plaintiffs’ claims of IIED until pre-trial, depriving them of the ability to raise the defense in their responsive pleading. Rule 8(a)(2) requires that a complaint contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The only function of the pleading is to “give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests .’’Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Further, “[a]U pleadings shall be so construed as to do substantial justice.” Fed.R.Civ.P. 8(f). After reviewing the Complaints of Michetti and Funk under this standard, I find that both provided adequate notice to defendants of the IIED claims. See Michetti Compl., at ¶¶ 2, 4, 20; Funk Compl., at ¶¶ 47-48. Accordingly, defendants’ first argument fails not only in its own right but also inasmuch as defendants apply it as a panacea for not pleading the statute of limitations as an affirmative defense in their Answer. Turning now to Michetti’s waiver assertion, Rule 8(c) of the Federal Rules of Civil Procedure provides that the statute of limitations, as an affirmative defense, must be set forth in a party’s responsive pleading. The general rule in this Circuit is that the statute of limitations “must be" }, { "docid": "21872308", "title": "", "text": "defendants: (1) that they violated Title VII and the KAAD by condoning or participating in sexual harassment and by retaliating against her for opposing illegal harassment; and (2) that the defendants subjected her to the intentional infliction of emotional distress, by participating in or condoning sexual harassment, and by refusing to assist her in opposing sexual harassment. John alleges: (1) that the defendants breached their duty of fair representation; and (2) that the defendants subjected him to the intentional infliction of emotional distress. A. John and Vicki’s Claims for the Intentional Infliction of Emotional Distress 1. Preemption Defendants argue that plaintiffs’ state law claims against the Union are preempted by section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Defendants’ reliance on section 301 is misplaced; plaintiffs do not allege any violation of the collective bargaining agreement by either the company or the Union, so their suit is not one encompassed by section 301. The apparent intent of the defendants is to argue that the plaintiffs’ state law claims are preempted by federal labor law, and specifically the National Labor Relations Act. The gist of this argument is that the acts which allegedly subject the defendants to liability under state law are no different than those required to establish breach of the duty of fair representation, and therefore federal law preempts the state causes of action. In Farmer v. United Brotherhood of Carpenters and Joiners, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1976), the Supreme Court considered whether the National Labor Relations Act preempted a California cause of action for the intentional infliction of emotional distress. The court noted the general rule that when activities which a state purports to regulate are protected by section 7 of the NLRA, or constitute an unfair labor practice under section 8, state jurisdiction must yield in deference to the federal enactment. Id. at 296, 97 S.Ct. at 1061. This rule is not absolute, however, as the Court will refuse to apply the preemption doctrine if the regulated activity is merely a “peripheral concern” of the federal enactment or" }, { "docid": "10637", "title": "", "text": "existence of a contractual relationship; (2) an intent on the part of the defendant to harm plaintiff by interfering with that contractual relationship; (3) the absence of a privilege or justification for such interference; and (4) damages resulting from the defendant’s conduct.” Triffin v. Janssen, 426 Pa.Super. 57, 626 A.2d 571, 574 (1993) (citations omitted). Plaintiff alleges that defendants intentionally interfered with her employment contract with U.S. Steel. Compl. ¶ 49 (Doc. No. 1-2) at 12. The employment contract to which Plaintiff refers is the BLA. Plaintiff cannot establish that defendants interfered with her contractual rights without first demonstrating what rights she was afforded under the BLA. See Beidleman, 182 F.3d at 235 (The “court cannot evaluate the veracity of the employees’ [tortious interference] claim[] ... without knowing to what rights ... the employees are referring.”). Consequently, resolution of this state-law claim will require interpretation of the BLA, which mandates a finding of § 301 preemption. See Wilkes-Barre Publ’g Co. v. Newspaper Guild of Wilkes-Barre, 647 F.2d 372, 381-82 (3d Cir.1981) (“[W]here parties to a labor dispute are charged with tortious interference with a collective bargaining agreement, at least in the absence of outrageous or violent conduct, state law causes of action are preempted [by section 301].”). Intentional Infliction of Emotional Distress Plaintiffs assertion that her intentional infliction of emotional distress claim only requires analysis of defendants’ conduct, and not the BLA, falls flat. In order to prevail on a claim of intentional infliction of emotional distress, Pennsylvania law requires a plaintiff to prove that the defendant “by extreme and outrageous conduct, intentionally or recklessly caused plaintiff severe emotional distress.” Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180, 1183 (1990). In order to establish the “outrageousness” of defendants’ conduct, a court must look to the terms of the BLA in order to determine whether: (1) the information given to plaintiff was inaccurate, and/or (2) plaintiffs discharge was wrongful. See Capraro v. United Parcel Service Co., 993 F.2d 328, 333 (3d Cir.1993) (IIED claim required interpretation of the collective bargaining agreement because it “depend[ed] on whether [the defendant] had the" }, { "docid": "12144985", "title": "", "text": "only penalize the union and reward the employer for problems that arise, initially, only because of the employer’s alleged breach of a collective bargaining agreement. The law of this circuit can be construed as applying the same statute of limitations to actions against both unions and employers at the time that Aragon’s claim arose; we choose that construction. We therefore affirm the district court’s grant of summary judgment in favor of defendants Ralphs and the Local on the § 301 claim. Thus, we need not address Aragon’s argument that she is entitled to damages of emotional distress on her breach of duty of fair representation claim. 2. This short statute of limitations should not be tolled in this case. On appeal, Aragon makes only one reference to tolling. She lists, as her last issue, “Whether the statute of limitations on plaintiff’s cause of action against RALPHS for breach of the collective bargaining [sic] should be tolled.” She never addresses the issue, never cites to any authority on this issue, and never raises any facts to justify tolling in her case. Her claim also fails on the merits. Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030 (9th Cir. 1983), controls the disposition of this issue. In Hub, the union — rather than an individual, like Aragon — sued the employer to enforce a collective bargaining agreement. That case, which was decided one day before DelCostello was decided, held that when a federal court borrows a state statute of limitations in claims arising under the Labor Management Relations Act, 29 U.S.C. section 185, the federal court may also borrow the state’s tolling provisions. DelCostello, decided one day later, held that the federal courts shall not borrow the state statute of limitations in actions against the employer and the union; thus, the federal courts may also be precluded from borrowing the state’s tolling provisions. If, however, it is appropriate to borrow California’s tolling provisions, Hub sets the analytical framework for doing so in a labor law case. California equitably tolls the statute of limitations during the pendency of an" }, { "docid": "10644", "title": "", "text": "practices” because it “implicated [the] collective bargaining agreement.”). Put another way, plaintiffs right to be free from retaliatory conduct is a right separate from those conferred by the BLA. See Lueck, 471 U.S. at 212, 105 S.Ct. 1904 (“[I]t would be inconsistent with congressional intent under [§ 301] to preempt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.”). As such, the BLA is not implicated and her cause(s) of action for retaliation survives § 301 preemption. In sum, the heart of plaintiffs complaint revolves around the collective bargaining agreement and her state-law claims for breach of contract, intentional misrepresentation, civil conspiracy, intentional interference with contractual relationship, and intentional infliction of emotional distress essentially are “complaints about the termination of an employment relationship regulated by the collective bargaining agreement and the [LMRA].” Capraro, 993 F.2d at 333. The record demonstrates that the events which form the basis of her claims occurred by April 7, 2009, at the latest, when she received a letter from the union which unequivocally stated they would take no further action on her behalf. See Ex. A (Doc. No. 11-1) at 4. Plaintiff did not file suit until April 8, 2010, well after the limitations period expired. See Vadino v. A. Valey Engineers, 903 F.2d 253, 260 (3d Cir.1990) (The date of accrual for a hybrid action commences when “the plaintiff re ceives notice that the union will proceed no further with the grievance.”). Accordingly, defendants’ motion to dismiss will be granted as to these claims because they are time-barred under the six-month statute of limitations period under § 10(b) of the NLRA, the source of the limitations period for § 301 claims. See Beidleman, 182 F.3d at 237 (holding that district court properly dismissed § 301 claims on statute of limitations grounds where the complaint was filed more than six months after cause of action accrued). The complaint does not indicate whether plaintiff has complied with any of the administrative prerequisites under Title VII or the PHRA. See Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir.1997) (“A complaint" }, { "docid": "22970003", "title": "", "text": "HUG, Circuit Judge: Stallcop filed a complaint in state court against Kaiser Foundation Hospitals and Permanente Medical Group (“Kaiser”), her former employers, alleging wrongful discharge, fraudulent misrepresentation, intentional and negligent infliction of emotional distress, and violations of California equal employment laws. She also alleged a cause of action against her former union for breach of the duty of fair representation. Following removal to federal district court, Stallcop’s claim against the union was dismissed and Kaiser’s motion for summary judgment on the remaining claims was granted. The district court found that all of Stallcop’s claims, except that of violation of California equal employment laws, were preempted by section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a) (1982). The district court then found that the relevant six-month statute of limitations had run on these section 301 claims, and that this time bar was not overcome by equitable considerations. Stallcop’s age and sex discrimination claims under California law were dismissed for failure to exhaust administrative remedies. Summary judgment was granted to Kaiser on Stallcop’s national origin claim because she failed to establish a prima facie case. The issues we address are: (1) whether the case was properly removed to federal court; (2) whether the wrongful discharge, fraudulent misrepresentation, and emotional distress claims are preempted by section 301; (3) whether the statute of limitations should be equitably modified; and (4) whether granting summary judgment to the defendants on the California discrimination claims was proper. We affirm the district court’s judgment. I. FACTS Throughout her employment with Kaiser, Stallcop was a member of the Hospital & Institutional Workers Union, Local 250 (“the Union”), which had an exclusive collective bargaining agreement with Kaiser. Stallcop was first terminated on May 7, 1984, after receiving three letters of warning from her supervisor concerning poor work performance. She was reinstated on July 11, 1984 pursuant to a reinstatement agreement negotiated between her, the Union, and Kaiser. This written agreement required Stallcop to show “substantial improvement” in her work. After her reinstatement, Stallcop again received notices of her inadequate job performance. Stallcop alleges that she was" }, { "docid": "15088582", "title": "", "text": "(1989) (pendent parties require independent jurisdictional basis). 4. Plaintiffs Intentional Infliction of Emotional Distress Claim In the second cause of action, plaintiff alleges that the defendants Laura Den nany and Vicky Tanzi, individually, revealed the contents of his pre-sentence report with the intent to inflict emotional distress upon plaintiff. To succeed on this claim, plaintiff must show that the defendants’ behavior amounted to “extreme and outrageous” conduct which intentionally or recklessly caused severe emotional distress. Freihofer v. Hearst Corp., 65 N.Y.2d 135, 139, 490 N.Y.S.2d 735, 480 N.E.2d 349 (1985). Even construing the pleadings in the plaintiff’s favor, the allegations against defendant Tanzi fail to state a claim upon which relief can be granted. New York courts have sustained claims of this type only where the publication of confidential material was committed in breach of an express or implied duty not to disclose. See, e.g., Blair v. Union Free School Dist., 67 Misc.2d 248, 253-54, 324 N.Y.S.2d 222 (Suffolk Cty.1971). Ms. Tanzi cannot be said to have been bound by any such duty of non-disclosure. She neither received the information as the result of a confidential relationship with the plaintiff, nor was she, like her sister, statutorily obligated to preserve its secrecy once she obtained it. Id. at 254, 324 N.Y.S.2d 222; cf. Freihofer, 65 N.Y.2d at 142, 490 N.Y.S.2d 735, 480 N.E.2d 349; Shiles v. News Syndicate Co., 27 N.Y.2d 9, 313 N.Y.S.2d 104, 261 N.E.2d 251 (1970), cert. denied, 400 U.S. 999, 91 S.Ct. 454, 27 L.Ed.2d 450 (1971); Danziger v. Hearst Corp., 304 N.Y. 244, 107 N.E.2d 62 (1952). Accordingly, I hereby vacate the entry of default against defendant Tanzi and dismiss plaintiff’s second cause of action against her. The second cause of action is time barred as against defendant Dennany. The statute of limitations for a claim of intentional infliction of emotional distress is one year from the date of last publication. N.Y.Civ. Prac.L. & R. § 215(3) (McKinney 1972); Jemison v. Crichlow, 139 A.D.2d 332, 336, 531 N.Y.S.2d 919 (2d Dep’t 1988), aff'd, 74 N.Y.2d 726, 544 N.Y.S.2d 813, 543 N.E.2d 78 (1989); Clark v." }, { "docid": "8654618", "title": "", "text": "Barbe also claims that the sending of the letter gives rise to damages for intentional infliction of emotional distress. She alleges in her complaint that the sending of the letter was “intentional and reckless”; that it was “extreme and outrageous” in light of Barbe’s “sensitive nature”; and that it was “the proximate cause of the emotional distress.” Again, she contends that this conduct is provable independently of any interpretation of the collective-bargaining agreement. Following receipt of the termination letter, the union, acting on behalf of Barbe, adjusted the claim and won for her rescission of the letter and obtained for her the option to resign or be given a leave of absence if she were able to present a doctor’s statement. Thereafter, Barbe elected to take a six-month leave of absence, which was later extended another six months. She pursued no other remedy and did not pursue the arbitral process that is granted to her under the collective-bargaining agreement. Rather, she elected to file this lawsuit for defamation and intentional infliction of emotional distress. This action was originally filed in the Circuit Court for Baltimore County. The defendants removed the action to this court, arguing that plaintiff’s claims were preempted by § 301(a) of the Labor Management Relations (Taft-Hartley) Act, 29 U.S.C. § 185(a). Plaintiff, arguing that her claims are not preempted by federal law, has filed a motion to remand the action to state court. Defendants, on the other hand, relying on the fact that plaintiff’s claims were properly removed to this court, have filed a motion to dismiss or for summary judgment, based on (1) plaintiff’s failure to exhaust her contractual remedies and (2) the running of the applicable statute of limitations for a claim under § 301. Barbe offered no defense on the merits of A & P’s motion to dismiss. All parties agree that the controlling issue is whether Barbe’s claims are preempted by § 301 of the Labor Management Relations Act. II Section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a), provides: Suits for violation of contracts between an employer" }, { "docid": "10536486", "title": "", "text": "*7 (N.D.N.Y. Sept.8, 1997) (same); Rivera v. Prudential Ins. Co. of America, 1996 WL 637555, *14 (N.D.N.Y.1996) (McAvoy, J.) (same); Gerzog v. London Fog Corp., 907 F.Supp. 590, 604 (E.D.N.Y.1995) (same). Accordingly, because the HRL does not limit the remedies of an aggrieved individual, and because the majority view of the New York courts, along with nearly every federal court, is that sexual harassment can give rise to a claim under New York law for IIED, defendants’ assertion that sexual harassment is not cognizable as an IIED claim is without merit. (ii) Defendants’ Remaining Arguments Relating to Plaintiffs’ claims of IIED Defendants next advance three other arguments for dismissal of the claims of IIED: (1) plaintiffs did not plead claims of IIED in their complaints; (2) plaintiffs did not prove claims of IIED at trial; and (3) Michetti’s claim of IIED is barred by the statute of limitations. Taking the third argument first for reasons that will become clear, a claim of IIED is governed by the one-year statute of limitations for intentional torts. N.Y.C.P.L.R. § 215(3); Peters v. Citibank, N.A., 677 N.Y.S.2d 626, 626 (2d Dep’t 1998). The one-year period is not tolled by the pendency of a charge with the EEOC. See, e.g., Casper, 1998 WL 150993, at *5. Here, Michetti left F & K’s employ in June 1994. She did not commence this lawsuit until August 2, 1995, which is approximately two months after the expiration of the statute of limitations. Michetti concedes as much but counters that defendants have waived the right to assert the defense of the statute of limitations by not raising it in their Answer. Her counter-argument, in turn, returns us to defendants’ argument that plaintiffs did not plead claims of IIED in accordance with FED.R.CrvP. 8(a)(2). This is because defendants contend that they had no notice of plaintiffs’ claims of IIED until pre-trial, depriving them of the ability to raise the defense in their responsive pleading. Rule 8(a)(2) requires that a complaint contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P." }, { "docid": "13976851", "title": "", "text": "violation of the First Amendment and defendants’ motion for summary judgment is granted with respect to Count III of the Complaint. VI. Plaintiff’s Claim for Intentional Inñiction of Emotional Distress Lastly, plaintiff brings a pendent state law claim against defendants for intentional infliction of emotional distress (“IIED”), claiming that “[b]y reason of the Defendants unconscionable, reckless, malicious and manipulative misrepresentations to Plaintiff, Defendant [sic], through their misfeasance, malfeasance, and nonfea-sance, caused to be inflicted upon Plaintiff emotional distress.” (CompltV 53.) Defendants contend that plaintiff is unable to establish a prima facie case for IIED because she has “failed to allege, let alone demonstrate, that she suffered any measurable damages as the result of the purported conduct ....” (Defs. Mem. Supp. Summ. J. at 24.) The tort of intentional infliction of emotional distress is highly disfavored under New York law and in the past was not even recognized by New York courts. See Nevin v. Citibank, N.A., 107 F.Supp.2d 333, 345-46 (S.D.N.Y.2000) (citing Howell v. New York Post, 81 N.Y.2d 115, 119-20, 612 N.E.2d 699, 596 N.Y.S.2d 350, 352 (1993); Fischer v. Maloney, 43 N.Y.2d 553, 558, 373 N.E.2d 1215, 402 N.Y.S.2d 991, 992-93 (1978)). Under New York law, a party claiming IIED must prove: (1) extreme and outrageous conduct; (2) intent to cause severe emotional distress; (3) a casual connection between the conduct and the injury; and (4) severe emotional distress. See Gay v. Carlson, 60 F.3d 83, 89 (2d Cir.1995) (internal quotation omitted). These elements are applied very strictly. See Martin v. Citibank, N.A., 762 F.2d 212, 220 (2d Cir.1985) (recognizing that “New York courts have been very strict in applying these principles”). New York courts have set a very rigorous standard for adjudging whether conduct is sufficiently “extreme and outrageous” to be actionable, and it is well-settled that the court may decide this issue as a matter of law. See Howell, 81 N.Y.2d at 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 (noting that “[i]n practice, courts have tended to focus on the outrageousness element” because it is the one “most suscepti ble as a matter of law”). Accordingly," }, { "docid": "13570074", "title": "", "text": "Developers to notify the company that Plaintiff was rescinding the handwritten contract of August 24, 1999, and the more formal typed contract of September 8,1999. Despite these notifications, Diamond Developers made no attempt to remove the cabinets and counter-tops from Plaintiffs property and took no action to cancel the security interest in Plaintiffs home. Because Diamond Developers was not cooperative with Plaintiffs efforts to have the goods removed from her property and the security interest in her home terminated, she eventually donated the cabinets and countertops to charity. Based on the above events, and several allegedly upsetting phone calls placed by representatives of Diamond Developers, Plaintiff, on February 22, 2000, filed a lawsuit against Diamond Developers and Defendant Bleiman in his individual capacity (collectively, “Defendants”), alleging violations of the Truth in Lending Act, 15 U.S.C. § 1601, et seq. (“TILA”), and the North Carolina Unfair and Deceptive Trade Practices Act, N.C.Gen.Stat. § 75-1.1. Plaintiff also alleged claims for intentional and negligent infliction of emotional distress against Defendants. Defendants filed a counterclaim, alleging that Plaintiff breached the home improvement contract. On April 12, 2000, Defendants filed a Motion to Dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) [Document # 6]. Although Defendants’ Motion to Dismiss was granted with respect to Plaintiffs TILA claim against Defendant Bleiman individually, Defendants’ Motion to Dismiss was denied with respect to all of Plaintiffs other claims. On January 8, 2001, Defendants filed a Motion for Summary Judgment [Document # 32]. Also on January 8, 2001, Plaintiff filed a Motion for Partial Summary Judgment [Document #35]. In its Memorandum Opinion dated March 29, 2001 [Document # 48], this Court granted Plaintiffs Motion for Partial Summary Judgment with respect to her claim that Diamond Developers violated the TILA. This Court also, in the same Memorandum Opinion, granted Plaintiffs Motion for Partial Summary Judgment with respect to Defendants’ breach of contract counterclaim. The Court also granted Defendants’ Motion for Summary Judgment with respect to all of Plaintiffs intentional and negligent infliction of emotional distress claims. Finally, the Court granted Defendants’ Motion for Summary Judgment with respect" }, { "docid": "18156928", "title": "", "text": "alleges own and operate the Clinic. In the complaint he asserted causes of action for (1) common law breach of fiduciary duty to maintain the confidentiality of personal health information, (2) breach of contract, (3) negligent hiring, training, retention and/or supervision of employees, (4) negligent infliction of emotional distress, (5) intentional infliction of emotional distress, (6) breach of duty to maintain the confidentiality of personal health information under New York C.P.L.R. § 4504, (7) breach of duty to maintain the confidentiality of personal health information under New York Public Health Law § 4410, and (8) breach of duty to maintain the confidentiality of personal health information under New York Public Health Law § 2803-c. The District Court granted the Guthrie Defendants’ motion to dismiss all eight claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Doe appeals the dismissal of the claims for breach of fiduciary duty, breach of contract, negligent hiring, training, retention and/or supervision of employees, negligent infliction of emotional distress, and intentional infliction of emotional distress. In this opinion, we address only the first claim, for common law breach of the fiduciary duty of confidentiality. DISCUSSION We review the District Court’s dismissal of a complaint pursuant to Rule 12(b)(6) de novo, Marsh v. Rosenbloom, 499 F.3d 165, 172 (2d Cir.2007), accepting all the factual allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff. Metz v. U.S. Life Ins. Co. in City of New York, 662 F.3d 600, 602 (2d Cir.2011). Most of Doe’s tort claims are premised on the Guthrie Defendants’ liability for Stalbird’s actions under the doctrine of respondeat superior Under New York common law, an employer is liable for the actions of an employee if her actions were foreseeable and if she acted within the scope of her employment. Horvath v. L & B Gardens, Inc., 89 A.D.3d 803, 932 N.Y.S.2d 184, 185 (2d Dep’t 2011). An employee’s conduct ordinarily cannot be attributed to the employer, however, if it was motivated solely by personal reasons “unrelated to the furtherance of the employer’s business.” Id. (quotation marks" }, { "docid": "2867004", "title": "", "text": "in violation of federal and state laws, Ms. Campbell has been caused to suffer mental anguish, emotional distress, loss of self-esteem, humiliation, [and] embarrassment caused by loss of rank[.] The defendants argue that this claim must be dismissed as time-barred and for legal insufficiency. Def.Br. at 17. Under New York law, the statute of limitations for commencing an action for intentional infliction of emotional distress is one year from the time at which the offensive conduct occurred. See Janneh v. Regency Hotel, Binghamton, 870 F.Supp. 37, 40 (N.D.N.Y.1994). The Complaint was filed on March 6, 1996. Therefore, Campbell’s claim for intentional infliction of emotional distress is time-barred to the extent that it rests upon her May 22,1992 demotion and the February 2, 1995 reduction in her work hours and must rest solely upon the alleged withholding of supplies and work space. Under New York law, a plaintiff claiming intentional infliction of emotional distress must prove four elements: (1) conduct that goes beyond all possible bounds of decency; (2) intention to cause distress, or knowledge that defendant’s conduct would result in emotional distress; (3) severe emotional distress; and (4) a causal link between the defendant’s conduct and plaintiffs distress. See Gay v. Carlson, 60 F.3d 83, 89 (2d Cir.1995) (citing Richard L. v. Armon, 144 A.D.2d 1, 536 N.Y.S.2d 1014, 1015 (2d Dep’t 1989)). The standard for stating a claim of intentional infliction of emotional distress is very high, requiring allegation of conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community.” Martin v. Citibank, N.A, 762 F.2d 212, 220 (2d Cir.1985). This court holds that, as a matter of law, Campbell’s claim for intentional infliction of emotional distress falls far short of the stringent standard for intentional infliction of emotional distress claims. See Gerzog v. London Fog, 907 F.Supp. 590, 604 (E.D.N.Y.1995) (“In the rare instances when the New York courts have found the complaint sufficient to state a claim for intentional infliction of emotional distress in the" }, { "docid": "1255688", "title": "", "text": "HUG, Circuit Judge: We have chosen to resolve these two cases as companions because they present the same legal issue: Does 28 U.S.C. § 1447(d) bar review of remand orders that are based on a finding that federal law does not completely preempt plaintiff’s state claims? We hold that it does. I. WHITMAN APPEAL On March 21, 1986, Cindy Whitman filed a complaint against Raley’s, her former employer, alleging causes of action for: (1) wrongful termination; (2) defamation; (3) conspiracy; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; and (6) reckless, malicious, oppressive and outrageous conduct. On April 25,1986, Raley’s filed a petition to remove the action to federal court on the ground that because the terms and conditions of Whitman’s employment were governed by a collective bargaining agreement, federal subject matter jurisdiction existed over the complaint under section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. On September 23, 1986, defendant filed a motion for summary judgment alleging that, once Whitman’s complaint is properly recharacterized, all relief is barred by section 301’s six month statute of limitations. Whitman both opposed the motion for summary judgment and filed a counter-motion to remand the case to state court. She contended that her claims were not preempted by section 301 because she was not a union member and had no knowledge of the collective bargaining agreement. On October 15, 1987, the district court granted Whitman’s motion to remand reasoning that: “Because the plaintiff does have a wrongful termination cause of action under state law which is not preempted in any degree by § 301 of the LMRA, there is no federal question presented by the plaintiff’s complaint. As such, this action was improperly removed from the state courts, and will be remanded.” On November 12, 1987, Raley’s appealed from the remand order. On January 14, 1988, the district court granted defendant’s motion to stay the remand order pending appeal. Then this court issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction pursuant to 28 U.S.C. §" }, { "docid": "14078568", "title": "", "text": "by delivering C.O.D. shipments to him as a consignee, or addressee. He cites no case law, nor can this court discover any, to support his construction of the statute. Only by doing violence to the plain language of the statute could this court conclude that the requirements of section 46a-66 are met on the alleged facts, even when viewing them in the light most favorable to the plaintiff. Cf. Kloth v. Citibank, 33 F.Supp.2d 115, 121 (D.Conn.1998)(dismissing § 46a-66 claim where plaintiff received harassing phone calls from defendant in its attempts to collect a credit card debt because she did “not make any allegation that Citibank discriminated against her in ‘applying for credit, application for credit, extension of credit or credit sale.’ ”). Thus, the discrimination claims brought pursuant to sections 46a-65 and 46a-66 are also dismissed. B. Second Count: 42 U.S.C. Sections 1981 and 1982 The defendant has not moved to dismiss the plaintiffs federal claims enumerated in the Second Count of the complaint. Therefore, the court does not address these claims in this ruling, and the count survives. C. Third and Fourth Counts: Negligent and Intentional Infliction of Emotional Distress The defendant argues that both negligent and intentional infliction of emotional distress claims should be stricken because the conduct alleged is not extreme and outrageous. Defendant United Parcel Service’s Memorandum of Law in Support of Motion Under Rule 12(b)(6) and Rule 12(e) (“Defs Mem Supp.”) [Dkt. No. 9] at 7. The plaintiff responds that he has stated a cause of action for both torts and that the factual allegations in his complaint suffice as a matter of law to support the conclusion that the defendant engaged in “extreme and outrageous conduct.” The court finds that the plaintiff has alleged sufficient facts to survive a motion to dismiss and thus denies the motion to dismiss with respect these state law tort claims. To establish a claim of intentional infliction of emotional distress under Connecticut law a plaintiff must plead and prove that (a) defendant ] intended to inflict emotional distress, or knew or should have known that emotional distress" } ]

[ { "docid": "13940082", "title": "", "text": "allay a defendant’s apprehension that there may be some retaliatory motivation on the part of the sentencing judge. Moreover, full appellate review is hampered because the court is unable to determine whether the information relied upon by the lower court is accurate. Here, for example, had appellant been advised of the parts of the F.B.I. interview which the district court felt demanded an increased sentence, he might have disputed the accuracy of the interview report, or raised some other critical point or even denied that the interview ever took place. On this record we can only speculate at best as to what might have developed in the sentencing proceedings had the court adequately informed the defense. It should not be overlooked that, outside the context of a Pearce resentencing situation, we have held “that at least where the trial court has explicitly relied upon presentence report information in assessing a sentence, ‘fundamental fairness requires that a defendant be given at least some opportunity to rebut that information.’” United States v. Horsley, 519 F.2d 1264, 1266 (5th Cir. 1975), quoting Shelton v. United States, 497 F.2d 156, 159 (5th Cir. 1974). The obligation to disclose can be no less where, as here, we are dealing not with an initial sentencing procedure but with the possible imposition after retrial of a more severe sentence than that previously handed down. When that possibility is entertained, the court must inform the defendant and his counsel of the factual data upon which the court intends to rely and must give them an opportunity to rebut or augment the data to the end that the sentence will not be constructed on a false foundation. Because the sentencing procedure in this case failed to meet this standard, appellant’s sentence must be vacated. Accordingly, the judgment and sentence are vacated and the case is remanded for further proceedings not inconsistent with this opinion. VACATED and REMANDED. . See 26 U.S.C. §§ 5179(a), 5205(a)(2), 5601(a)(1), 5601(a)(4), 5602, 5604(a)(1), 7206(4) (1970). . United States v. Miller, 500 F.2d 751 (5th Cir. 1974). . The absence of an objection means, of" } ]

[ { "docid": "6547328", "title": "", "text": "at least one and probably several other of these bank robberies, although this one was an attempt. Hodges contends that he and his attorney learned that the statements would be “an important consideration” in sentencing only after the opportunity for allocution had passed. However, the witnesses’ statements which the judge considered are referred to in the presentence report, at page eight, according to the supplemented record. At the time of sentencing, counsel asserted that he and Hodges had reviewed the report together, and said that they had no objection to any material contained in the first eight pages. When the district judge made clear that he would consider the witnesses’ statements in sentencing, neither Hodges nor his counsel objected. Prior to sentencing the district judge asked Hodges whether he would like to say anything in his own behalf, and Hodges declined. In short, Hodges was given ample opportunity to rebut the witnesses’ statements, but did not do so. The sentencing procedure thus did not lack fundamental fairness in this regard. Hodges’ ten-year sentence is far below the maximum which the judge might have imposed for this conviction. In assessing that sentence the judge took into account many factors in addition to the statements to which Hodges now objects; the sentencing transcript makes clear that those statements were not the factor on which the judge relied most heavily. Accordingly, we find neither in the length nor in the method of sentencing that “gross abuse” which would allow us to question the discretion of the sentencing judge. See United States v. Gamboa, supra, 543 F.2d at 546. Having considered Hodges’ points on appeal and found each to be without merit, we affirm the judgment below. AFFIRMED. . 18 U.S.C. § 371 provides in relevant part: 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 fined not more than $10,000" }, { "docid": "23345271", "title": "", "text": "and Townsend have been read broadly to preclude reliance upon “improper or inaccurate information” in making the sentencing determination. Dorszynski, supra, 418 U.S. at 431 n. 7, 443, 94 S.Ct. 3042; McGee v. United States, 462 F.2d 243, 245 n. 2 (2d Cir. 1972); United States v. Espinoza, 481 F.2d 553, 555 (5th Cir. 1973). The Townsend-Tucker principle, however, is to some extent inconsistent with the principle of Williams v. New York and its progeny. The former reflects the Court’s belief that a defendant should not be sentenced on invalid premises. The latter, i. e., that consideration of hearsay information regarding defendant’s life and characteristics is generally permissible, reflects the Court’s concern that the trial judge exercise his individualized sentencing discretion in an informed manner. While both principles are premised on a concern that the sentencing process be objective and fair to the individ ual defendant, the policies underlying Williams cannot be inflexibly advanced without undermining the policies underlying Townsend and Tucker, since hearsay allegations, by their very nature, are prone to error or inaccuracy. Hence the courts of appeals have found it necessary to strike a balance between the two principles in order to give adequate recognition to both. In striking this balance, the courts have held that a defendant is entitled to some protection against the danger of reliance on erroneous hearsay allegations in the assessment of punishment. Specifically, it has been held that where the sentencing judge relies upon prejudicial hearsay information, the accuracy of which is contested, “fundamental fairness requires that a defendant be given at least some opportunity to rebut that information.” United States v. Espinoza, supra, 481 F.2d at 556. In applying this principle to the case at bar, we are confronted with several problems. First, the cases frequently state that this rule only applies where the sentencing judge has explicitly relied on prejudicial hearsay information regarding the offender’s background. See, e. g., United States v. Walker, 469 F.2d 1377, 1380 (1st Cir. 1972); United States v. Espinoza, supra, 481 F.2d at 556. And the court below did not state the factors it considered" }, { "docid": "8915952", "title": "", "text": "to United States v. Espinoza, 481 F.2d 553, 556 (5th Cir. 1973), for the proposition that . . where a sentencing judge explicitly relies on certain information in assessing a sentence, fundamental fairness requires that a defendant be given at least some opportunity to rebut that information.” (emphasis in original) But in fact, Espinoza reaffirms the importance of the due process limitation relied upon by Moore. For in referring to United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the Espinoza court notes: Implicit in the Court’s holding in Tucker is the principle that despite the broad discretion left to the trial judge in assessing background information for sentencing purposes . a defendant retains the right not to be sentenced on the basis of invalid premises. 481 F.2d at 555. In addition, when the court in Espinoza speaks of “explicit” reliance by the trial court on certain data about the defendant, it is referring to a situation in which the trial judge says openly that he is relying on some bit of information in the presentence report; in such a case, Espinoza indicates, the defendant has a right to have an opportunity to rebut that information. That discussion in Espinoza is irrelevant to the situation that concerns us, for there is no evidence here that the trial court stated explicitly that it relied upon the data in question. . If the district court determines after additional proceedings that there is a factual basis for Moore’s objection, and thus that his sentence is violative of due process, Moore must be resentenced. If there is to be resentencing, the court should state the grounds of the penalty ultimately imposed. Cf. United States v. Moore, 176 U.S.App.D.C. 309, 312-313, 540 F.2d 1088, 1091-1092 (1976) (separate statement of Bazelon, C. J.); McGee v. United States, 462 F.2d 243, 247 (2d Cir. 1972); United States v. Latimer, 415 F.2d 1288, 1290-1291 (6th Cir. 1969). See generally United States v. Bazzano, 570 F.2d 1120, Nos. 76-2584 — 76-2588 and No. 76-2628 (3d Cir., filed December 21, 1977) (concurring opinion)." }, { "docid": "9492158", "title": "", "text": "In United States v. Espinoza, 5 Cir. 1973, 481 F.2d 553, it was represented to the court that the appellant had never been convicted of a felony. The court nevertheless remarked that whether or not he had actually been convicted appellant’s record was bad. The court denied appellant’s request to submit evidence to rebut the court’s statement. Relying on Townsend v. Burke, 1948, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 in which the Supreme Court said that a sentence based on assumptions concerning the prisoner’s record which are materially untrue is inconsistent with due process of law, this Court opined, that despite the broad discretion left to the trial judge in assessing background information for sentencing purposes, ... a defendant retains the right not to be sentenced on the basis of invalid premises. Id. at 555. The use of statistics, even if calculated from a sound base and placed in proper context, neither of which was shown to have been done here, is an invalid premise on which to impose sentence. This approach injects hypothetical extraneous considerations into the sentencing process and contradicts the judicially approved policy of individualizing sentences that are tailored to fit the offender. Williams v. New York, 1949, 337 U.S. 241, 248, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337, 1342. Nor do we condone a mechanical sentencing policy that eliminates probation from consideration in every case in the category here involved. We iterate, We affirm our disapproval of statements by a trial judge reflecting a fixed sentencing policy based on the category of crime rather than on the individualized record of the defendant. Hartford, supra, at 655, quoting from United States v. Baker, 2 Cir. 1973, 487 F.2d 360. VACATED AND REMANDED FOR RE-SENTENCING." }, { "docid": "22993837", "title": "", "text": "the sentencing process from turning into a full scale evidentiary-type hearing, it has also been widely recognized that where a sentencing judge explicitly relies on certain information in assessing a sentence, fundamental fairness requires that a defendant be given at least some opportunity to rebut that information. In United States v. Battaglia, 5 Cir. 1972, 478 F.2d 854, defendant petitioned the district court to modify sentence on the ground that the judge relied on inaccurate information in assessing the sentence. This court vacated the sentence and stated: “At the time of sentencing, the trial judge stated that he was taking into consideration certain facts which he believed to be true. The defendant says they are untrue. On consideration of the motion, the judge said that he would have imposed the same sentence even if the facts were untrue. Although this may be so, we think it is better to assure the defendant that the alleged untrue facts will not affect his sentence by permitting him a hearing at which he may seek to remove any lingering doubt the court may have had about the true situation. The court should then reconsider the sentence in the light of the true facts as found after hearing.” In United States v. Malcolm, 2 Cir. 1970, 432 F.2d 809, defendant claimed in his § 2255 motion that he was sentenced on the basis of erroneous information and that the sentencing judge erred in refusing to hear certain evidence aimed at mitigating sentence. The Second Circuit remanded for resentencing and stated: “The result of the procedural irregularity is that the sentence rests on a foundation of confusion, misinformation and ignorance of facts vitally material to mitigation. If justice is to be done, a sentencing judge should know all the material facts. The information which was curtailed and precluded here should therefore have been received and considered. Fair administration of justice demands that the sentencing judge will not act on surmise, misinformation and suspicion but will impose sentence with insight and understanding. Harris v. United States, 382 U.S. 162, 166, 86 S.Ct. 352, 15 L.Ed.2d 240" }, { "docid": "855473", "title": "", "text": "considerations] admonish us against treating the due process clause as a uniform command that courts throughout the Nation abandon their age-old practice of seeking information from out-of-court sources . Id. at 250, 251, 69 S.Ct. at 1084. The Williams Court, of course, did not hold that the sentencing judge’s discretion is unlimited. A defendant has a right to “at least minimal safeguards to insure that the sentencing court does not rely on erroneous factual information”, United States v. Espinoza, 5 Cir. 1973, 481 F.2d 553, 555; see United States v. Tucker, supra at 447, 92 S.Ct. 589; Townsend v. Burke, 334 U.S. 736, 740, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). Thus we have held that where a defendant disputes information considered in imposing a sentence, the defendant must be given “at least some opportunity to rebut that information”, United States v. Espinoza, supra at 556; see United States v. Ashley, 5 Cir., 555 F.2d 462, 466, cert. denied, 434 U.S. 869, 98 S.Ct. 210, 54 L.Ed.2d 147 (1977); Shelton v. United States, 5 Cir. 1974, 497 F.2d 156, 160. See also United States v. Rollerson, 5 Cir. 1974, 491 F.2d 1209, 1213; United States v. Battaglia, 5 Cir. 1972, 478 F.2d 854. The right of rebuttal does not require that the sentencing hearing be transformed into a second trial. See United States v. Espinoza, supra at 558. See also United States v. Weston, 9 Cir. 1971, 448 F.2d 626, 633, cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972). At a mini- mura it is sufficient if the sentencing judge affords the defendant an opportunity to “comment on any alleged factual inaccuracy.” United States v. Brice, 5 Cir. 1977, 565 F.2d 336, 337; United States v. Hodges, 5 Cir. 1977, 547 F.2d 951, 952; United States v. Ashley, supra. Barnett does not contend that he was not afforded an opportunity to rebut the information contained in the pre-sentence report. What he claims is that he “did rebut” it. He therefore argues that the right of rebuttal was insufficient; “anything less than a full evidentiary hearing constitutes" }, { "docid": "6547326", "title": "", "text": "during the meeting. Upon government objection counsel explained that he was attempting to attack Croteau’s “credibility” by showing that she was drug-intoxicated during the meeting. The district judge refused to allow the line of questioning, and Hodges asserts that the refusal was error. Inquiry on cross-examination beyond the scope of direct or the witnesses’ own credibility is subject to the discretion of the district judge. F.R.E. 611(b). Hodges does not claim that Cartwright possesses any expertise which would allow him to draw conclusions concerning Croteau’s mental state from her appearance. Similarly, any inferences concerning Croteau’s mental state drawn by the jury from a description of her appearance would be unwarranted. The jury already knew that Croteau had smoked the marijuana and could take that into account in evaluating her testimony. Under these circumstances the district judge properly exercised his discretion in refusing to allow Cartwright’s testimony as to Croteau’s physical appearance. Finally, Hodges alleged that in assessing his sentence the district judge took into account unreliable information pertaining to past criminal activity. Hodges asserts that he was not notified that this information would be considered in sentencing, so that he had no opportunity to rebut it. We have held that a convicted defendant “retains the right not to be sentenced on the basis of invalid premises.” United States v. Espinoza, 5 Cir., 1973, 481 F.2d 553, 555. Fundamental fairness therefore requires that the defendant “be given at least some opportunity to rebut” information explicitly relied upon by the sentencing judge. Id., at 556; see United States v. Gamboa, 5 Cir., 1976, 543 F.2d 545, 547; United States v. McDuffie, 5 Cir., 1976, 542 F.2d 236, 242. In the present case the trial judge excluded from the jury witnesses’ statements that Hodges had told them that he had successfully robbed other banks. At the sentencing hearing, however, the judge took these statements into account, saying, I do remember the evidence in the case although I did exclude it from the jury’s consideration, it certainly cannot be excluded from the Court’s consideration, that this wasn’t the first time around. You have done" }, { "docid": "23284204", "title": "", "text": "a “substantial preliminary showing” that the affiants’ statements were deliberately false or made with reckless disregard for the truth. Sibley, 448 F.3d at 758. The district court did not clearly err in finding that Thomas did not make the required showing. Our analysis of this issue could end here. In a previous decision, though, we wrote that where the district court continues its analysis to consider whether a search warrant would establish probable cause once the false information was redacted, we “would be prudent” to review this conclusion. United States v. Cavazos, 288 F.3d 706, 710 (5th Cir.2002). “A probable cause determination is a practical, common-sense decision as to whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 710 (internal quotation marks and citation omitted). We evaluate probable cause by the totality of the circumstances. United States v. Cherry, 50 F.3d 338, 341 (5th Cir.1995) (citation omitted). Here, after the challenged information is excised, the affidavits reveal physical evidence connecting Hodges to at least two of the robberies; Thomas and Hodges matched the general descriptions of the bank robbers; and police had long suspected their involvement in the robberies based on several suspicious encounters with the half-brothers. We agree with the district court that even after redacting the challenged information, the affidavits established probable cause. V. Hodges — Cruel and Unusual Punishment Hodges argues that his 1,435-month sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment. Specifically, he acknowledges that his 151-month sentence for conspiracy and bank robbery convictions was “fair,” but takes issue with his 1,284-month sentence for the weapons convictions. Hodges claims that this “life sentence without the possibility of parole or early release” is unduly harsh and disproportionate to recent bank robbery cases in this circuit. He points out that no one was physically harmed in the bank robberies. The Eighth Amendment “has been read to preclude a sentence that is greatly disproportionate to the offense, because such sentences are ‘cruel and" }, { "docid": "23345272", "title": "", "text": "Hence the courts of appeals have found it necessary to strike a balance between the two principles in order to give adequate recognition to both. In striking this balance, the courts have held that a defendant is entitled to some protection against the danger of reliance on erroneous hearsay allegations in the assessment of punishment. Specifically, it has been held that where the sentencing judge relies upon prejudicial hearsay information, the accuracy of which is contested, “fundamental fairness requires that a defendant be given at least some opportunity to rebut that information.” United States v. Espinoza, supra, 481 F.2d at 556. In applying this principle to the case at bar, we are confronted with several problems. First, the cases frequently state that this rule only applies where the sentencing judge has explicitly relied on prejudicial hearsay information regarding the offender’s background. See, e. g., United States v. Walker, 469 F.2d 1377, 1380 (1st Cir. 1972); United States v. Espinoza, supra, 481 F.2d at 556. And the court below did not state the factors it considered in imposing the maximum sentence upon defendant. However, several considerations persuade us that the lack of explicit reliance in this case is not dispositive of defendant’s claim. The vindication of a defendant’s right to not be sentenced on the basis of improper factors or erroneous information — a right recognized by the Court in Townsend and Tucker — should not depend upon the fortuity of the sentencing judge disclosing, perhaps inadvertently, the factors relied upon in the imposition of sentence. The fairness of the sentencing process is undermined by reliance upon inaccurate information, not by the sentencing judge stating that he relied upon material which proves to be inaccurate. In addition, the explicit reliance requirement simply encourages judges not to disclose the factors considered in imposing sentence. While it is true that a trial judge is generally not obligated to give reasons for the imposition of a particular sentence, it is sometimes necessary, and always advisable, to do so. See, e. g., McGee v. United States, 462 F.2d 243, 247 (2d Cir. 1972); United States" }, { "docid": "22404063", "title": "", "text": "evidence the amount of loss resulting from the offense; the defendant must demonstrate the financial needs of himself and his dependents by the same standard. 18 U.S.C. § 3580(d). Although the only reference to the source of this relevant information is found at subsection 3580(b), which authorizes the court to order the Probation Service to prepare a victim impact statement as part of the presentence report, nothing in the statute prevents the court from hearing testimony or receiving other evidence relevant to its inquiry. Rule 32(a)(1)(C) creates additional procedural protection by assuring the defendant the opportunity “to make a statement in his own behalf and to present any information in mitigation of punishment.” Although a noncapital defendant does not have a constitutional right to call and cross-examine witnesses to rebut information contained in the presentence report, United States v. Ashley, 555 F.2d 462, 466 (5th Cir.), cert. denied, 434 U.S. 869, 98 S.Ct. 210, 54 L.Ed.2d 147 (1977), Rule 32(c)(3)(A) gives him the right to comment on the report and correct any alleged factual inaccuracies contained in it. The right to rebut information contained in a presentence report also has been expressly recognized in the courts. See United States v. Aguero-Segovia, 622 F.2d 131, 132 (5th Cir.1980). This right is especially important when, as is likely in the context of restitu tion, a sentencing judge explicitly relies on certain information in setting a sentence. Espinoza, 481 F.2d at 556. The defendant facing restitution is further protected by Rule 32(c)(3)(D), which requires the trial court to make a factual finding on the record if the defendant challenges the accuracy of the information contained in the presentence report and relied upon by the sentencing judge. This rule presumably will apply to the victim impact statement as well. This should facilitate appellate review and help ensure that the sentence will not be based on inaccurate facts. If the rights delineated in Rule 32 are enforced by the sentencing judge, the defendant should be afforded timely notice and an opportunity to respond to the statements made in that report. Addressing the many other concerns" }, { "docid": "6547327", "title": "", "text": "he was not notified that this information would be considered in sentencing, so that he had no opportunity to rebut it. We have held that a convicted defendant “retains the right not to be sentenced on the basis of invalid premises.” United States v. Espinoza, 5 Cir., 1973, 481 F.2d 553, 555. Fundamental fairness therefore requires that the defendant “be given at least some opportunity to rebut” information explicitly relied upon by the sentencing judge. Id., at 556; see United States v. Gamboa, 5 Cir., 1976, 543 F.2d 545, 547; United States v. McDuffie, 5 Cir., 1976, 542 F.2d 236, 242. In the present case the trial judge excluded from the jury witnesses’ statements that Hodges had told them that he had successfully robbed other banks. At the sentencing hearing, however, the judge took these statements into account, saying, I do remember the evidence in the case although I did exclude it from the jury’s consideration, it certainly cannot be excluded from the Court’s consideration, that this wasn’t the first time around. You have done at least one and probably several other of these bank robberies, although this one was an attempt. Hodges contends that he and his attorney learned that the statements would be “an important consideration” in sentencing only after the opportunity for allocution had passed. However, the witnesses’ statements which the judge considered are referred to in the presentence report, at page eight, according to the supplemented record. At the time of sentencing, counsel asserted that he and Hodges had reviewed the report together, and said that they had no objection to any material contained in the first eight pages. When the district judge made clear that he would consider the witnesses’ statements in sentencing, neither Hodges nor his counsel objected. Prior to sentencing the district judge asked Hodges whether he would like to say anything in his own behalf, and Hodges declined. In short, Hodges was given ample opportunity to rebut the witnesses’ statements, but did not do so. The sentencing procedure thus did not lack fundamental fairness in this regard. Hodges’ ten-year sentence is far" }, { "docid": "23284205", "title": "", "text": "excised, the affidavits reveal physical evidence connecting Hodges to at least two of the robberies; Thomas and Hodges matched the general descriptions of the bank robbers; and police had long suspected their involvement in the robberies based on several suspicious encounters with the half-brothers. We agree with the district court that even after redacting the challenged information, the affidavits established probable cause. V. Hodges — Cruel and Unusual Punishment Hodges argues that his 1,435-month sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment. Specifically, he acknowledges that his 151-month sentence for conspiracy and bank robbery convictions was “fair,” but takes issue with his 1,284-month sentence for the weapons convictions. Hodges claims that this “life sentence without the possibility of parole or early release” is unduly harsh and disproportionate to recent bank robbery cases in this circuit. He points out that no one was physically harmed in the bank robberies. The Eighth Amendment “has been read to preclude a sentence that is greatly disproportionate to the offense, because such sentences are ‘cruel and unusual.’ ” McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir.1992) (citation omitted). On review, however, this court does not “substitute its judgment for that of the legislature nor of the sentencing court as to the appropriateness of a particular sentence; it should decide only if the sentence is within the constitutional limitations.” United States v. Harris, 566 F.3d 422, 436 (5th Cir.2009) (internal quotation marks and citation omitted). Thus, “our review of Eighth Amendment challenges is narrow,” and “successful Eighth Amendment challenges to prison-term lengths will be rare.” Id. (internal quotation marks, brackets, and citation omitted). When assessing whether a sentence is unconstitutionally disproportionate, this court first makes a threshold comparison of the gravity of the offense against the severity of the sentence. McGruder, 954 F.2d at 316. Only if we determine that the sentence is “grossly disproportionate to the offense” will we compare Hodges’ sentence to sentences for similar crimes in this and other jurisdictions. Id. Hodges’ sentence was not grossly disproportionate to the offenses he committed. The jury found that he robbed" }, { "docid": "152744", "title": "", "text": "information. Merely alleging that the PSI report contained inaccurate or inappropriate information does not sufficiently call into question a violation of due process in sentencing. Cimino, 659 F.2d at 537. Garcia relies on Shelton v. United States, 497 F.2d 156 (5th Cir.1974), and United States v. Espinoza, 481 F.2d 553 (5th Cir.1973), for the proposition that “[mjisinformation regarding facts relevant to sentencing renders the sentencing process invalid.” Garcia misstates the holding in both cases. Rather they stand for the proposition that where a judge “explicitly relies on certain information in assessing a sentence,” the defendant must be given some opportunity to rebut that information. Shelton, 497 F.2d at 159; Espinoza, 481 F.2d at 556. Here, Garcia was given an opportunity both at sentencing and at his sentence reduction hearing to rebut the information. Prior to sentencing, the judge explicitly stated that he would not consider the matters which Garcia contested, and at the hearing on his motion to reduce, after listening to Garcia’s rebuttal and the testimony of other witnesses, the judge stated that he simply did not accept Garcia’s explanations. Garcia’s reliance on Shelton and Espinoza is therefore misplaced. We next look to see if the data in the PSI report was materially inaccurate and if so, if the sentencing judge explicitly relied on the inaccuracies. Garcia contends that his PSI report was faulty in that it gave the misimpression that he had a criminal record and that he was heavily involved in the heroin trade, charges which he disputes. The following information relating to the PSI is apparently the source of Garcia’s concern: 1) he was not the source or actual distributor of the controlled substance; he was rather the contact, go-between man; 2) there were hearsay reports from DEA informants and other DEA personnel indicating that he had been involved in twenty prior illegal drug transactions; 3) he was previously charged with conspiracy, but the government dismissed the case; 4) when he was a young man, he was charged with murder, but he was “no billed” by the grand jury; 5) he was indicted on several occasions" }, { "docid": "6547325", "title": "", "text": "interviewed witnesses. Investigators’ notes of interviews do not fall under the Act even if they contain “occasional verbatim recitations of phrases used by the person interviewed,” United States v. Cruz, 5 Cir., 1973, 478 F.2d 408, 413. Whether transcripts of those notes contain such extensive verbatim recitations as to bring the transcripts under the Act is a matter of fact within the discretion of the trial judge, id. We conclude that the district judge’s finding that the “302” reports were not substantially verbatim under the Act was not clearly erroneous. See Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 1360, 10 L.Ed.2d 501 (1963). Hodges next contends that the trial judge erred in excluding certain questioning at trial. Croteau, who appeared as a government witness, gave damaging testimony concerning a meeting among the conspirators. On cross-examination Croteau admitted smoking two marijuana cigarettes before the meeting. She denied that her perception was affected thereby. The defense did not further challenge her testimony, but later sought to cross-examine Cartwright concerning the “appearance” of Croteau during the meeting. Upon government objection counsel explained that he was attempting to attack Croteau’s “credibility” by showing that she was drug-intoxicated during the meeting. The district judge refused to allow the line of questioning, and Hodges asserts that the refusal was error. Inquiry on cross-examination beyond the scope of direct or the witnesses’ own credibility is subject to the discretion of the district judge. F.R.E. 611(b). Hodges does not claim that Cartwright possesses any expertise which would allow him to draw conclusions concerning Croteau’s mental state from her appearance. Similarly, any inferences concerning Croteau’s mental state drawn by the jury from a description of her appearance would be unwarranted. The jury already knew that Croteau had smoked the marijuana and could take that into account in evaluating her testimony. Under these circumstances the district judge properly exercised his discretion in refusing to allow Cartwright’s testimony as to Croteau’s physical appearance. Finally, Hodges alleged that in assessing his sentence the district judge took into account unreliable information pertaining to past criminal activity. Hodges asserts that" }, { "docid": "7552216", "title": "", "text": "the firearms case did not specify whether he sought a dismissal of the indictment with prejudice, see supra note 9, we will treat his motion as seeking such relief. . Studnicka also contends that the trial judge relied on erroneous information concerning his past criminal conduct in fashioning his sentence. 18 U.S.C. § 3577 (1982) provides that ”[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.\" See also United States v. Tucker, 404 U.S. 443, 446-47, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972) (sentence imposed by a federal district judge is generally not subject to review if it is within statutory limits); United States v. Marcello, 423 F.2d 993, 1012 (5th Cir.) (court may consider defendant’s past conduct other than criminal convictions, including relations with police and public authorities, position in the community, and other factors), cert. denied, 398 U.S. 959, 90 S.Ct. 2172, 26 L.Ed.2d 543 (1970). A defendant does of course have a right to \"at least minimal safeguards to insure that the sentencing court does not rely on erroneous factual information when assessing sentence.\" United States v. Espinoza, 481 F.2d 553, 555 (5th Cir.1973). Where a defendant disputes information presented to the court in determining the sentence, the defendant must be given \"at least some opportunity to rebut that information.” Id. at 556. In this case, Studnicka had the opportunity to examine the presentence investigation report. The trial judge offered him an opportunity to comment on any sections of the report he found objectionable. Studnicka listed several items in the report which he requested be deleted, but gave no reasons for his objections. The court allowed the defendant to file an addendum setting forth his position on these matters, but he never did so. In addition to being given an opportunity to comment on the accuracy of the presentence report before the sentencing judge, Studnicka has failed to present any evidence that would merit a" }, { "docid": "152743", "title": "", "text": "that he had not overlooked something or that he had not been unduly harsh with Garcia. The court permitted Garcia to make a voluntary surrender, granted Garcia’s motion to reduce, and reduced the sentence to eight years. III. ISSUES On appeal Garcia contends 1) that in sentencing, the district court relied on inaccurate and challenged information contained in the PSI report; and 2) that he was denied equal protection of the law because he received a harsher sentence than his codefendant. For Garcia to prevail on this challenge to his sentence, which is concededly within the statutorily permissible limits, he must show that the trial judge’s action amounted to an arbitrary or capricious abuse of discretion. United States v. Cimino, 659 F.2d 535, 537 (5th Cir.1981); United States v. Small, 636 F.2d 126, 127 (5th Cir.1981). In regard to his specific charge that the trial judge relied on inaccurate and challenged information in his PSI report in imposing sentencing, Garcia must show that the information was materially inaccurate and that the judge relied on that information. Merely alleging that the PSI report contained inaccurate or inappropriate information does not sufficiently call into question a violation of due process in sentencing. Cimino, 659 F.2d at 537. Garcia relies on Shelton v. United States, 497 F.2d 156 (5th Cir.1974), and United States v. Espinoza, 481 F.2d 553 (5th Cir.1973), for the proposition that “[mjisinformation regarding facts relevant to sentencing renders the sentencing process invalid.” Garcia misstates the holding in both cases. Rather they stand for the proposition that where a judge “explicitly relies on certain information in assessing a sentence,” the defendant must be given some opportunity to rebut that information. Shelton, 497 F.2d at 159; Espinoza, 481 F.2d at 556. Here, Garcia was given an opportunity both at sentencing and at his sentence reduction hearing to rebut the information. Prior to sentencing, the judge explicitly stated that he would not consider the matters which Garcia contested, and at the hearing on his motion to reduce, after listening to Garcia’s rebuttal and the testimony of other witnesses, the judge stated that he" }, { "docid": "8915951", "title": "", "text": "in a letter relating to other offenses violated defendant’s constitutional rights, where the sentencing judge explicitly stated before sentencing that he was not relying on the allegations in the letter. See also United States v. Doyle, 348 F.2d 715, 722 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965) (stressing, that the trial court had noted that, in sentencing, it had placed no great weight on the challenged information; as the appellate court said, “. . there is not the slightest reason to doubt that the trial judge meant what he said in specifying the basis for his sentence.”) . See Blackledge v. Allison, 431 U.S. 63, 75-76, 78, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). . The government further argues that Moore did not carry his burden of raising a question about the falsity of the information contained in the presentence report. Yet, in our view, Moore’s allegations are sufficient, at this stage of the case, to raise serious doubt about the validity of his sentence. The government refers to United States v. Espinoza, 481 F.2d 553, 556 (5th Cir. 1973), for the proposition that . . where a sentencing judge explicitly relies on certain information in assessing a sentence, fundamental fairness requires that a defendant be given at least some opportunity to rebut that information.” (emphasis in original) But in fact, Espinoza reaffirms the importance of the due process limitation relied upon by Moore. For in referring to United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the Espinoza court notes: Implicit in the Court’s holding in Tucker is the principle that despite the broad discretion left to the trial judge in assessing background information for sentencing purposes . a defendant retains the right not to be sentenced on the basis of invalid premises. 481 F.2d at 555. In addition, when the court in Espinoza speaks of “explicit” reliance by the trial court on certain data about the defendant, it is referring to a situation in which the trial judge says openly that he is relying on some" }, { "docid": "855472", "title": "", "text": "such accusations” contravenes the requirements of the Fifth Amendment to the United States Constitution; that anything less than a full evidentiary hearing constitutes a denial of due process. These arguments must be rejected. A sentencing judge “may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446-47, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). For example, in the landmark case of Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), a state sentencing procedure whereby the judge considered information obtained “outside the courtroom from persons whom the defendant has not been permitted to confront or cross-examine” was found not to be constitutionally infirm. Id. at 245. Writing for the Williams Court, Mr. Justice Black observed that the information necessary for an intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination . [such considerations] admonish us against treating the due process clause as a uniform command that courts throughout the Nation abandon their age-old practice of seeking information from out-of-court sources . Id. at 250, 251, 69 S.Ct. at 1084. The Williams Court, of course, did not hold that the sentencing judge’s discretion is unlimited. A defendant has a right to “at least minimal safeguards to insure that the sentencing court does not rely on erroneous factual information”, United States v. Espinoza, 5 Cir. 1973, 481 F.2d 553, 555; see United States v. Tucker, supra at 447, 92 S.Ct. 589; Townsend v. Burke, 334 U.S. 736, 740, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). Thus we have held that where a defendant disputes information considered in imposing a sentence, the defendant must be given “at least some opportunity to rebut that information”, United States v. Espinoza, supra at 556; see United States v. Ashley, 5 Cir., 555 F.2d 462, 466, cert. denied, 434 U.S. 869, 98 S.Ct. 210, 54 L.Ed.2d 147 (1977); Shelton v. United States, 5 Cir." }, { "docid": "7552217", "title": "", "text": "2172, 26 L.Ed.2d 543 (1970). A defendant does of course have a right to \"at least minimal safeguards to insure that the sentencing court does not rely on erroneous factual information when assessing sentence.\" United States v. Espinoza, 481 F.2d 553, 555 (5th Cir.1973). Where a defendant disputes information presented to the court in determining the sentence, the defendant must be given \"at least some opportunity to rebut that information.” Id. at 556. In this case, Studnicka had the opportunity to examine the presentence investigation report. The trial judge offered him an opportunity to comment on any sections of the report he found objectionable. Studnicka listed several items in the report which he requested be deleted, but gave no reasons for his objections. The court allowed the defendant to file an addendum setting forth his position on these matters, but he never did so. In addition to being given an opportunity to comment on the accuracy of the presentence report before the sentencing judge, Studnicka has failed to present any evidence that would merit a new sentencing hearing: Where a defendant claims that his due process rights have been violated by the sentencing court’s reliance on false or unreliable information, he must make a showing of two elements: (1) that the challenged evidence is materially false or unreliable, and (2) that it actually served as the basis for the sentence. United States v. Reme, 738 F.2d 1156, 1167 (11th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 2334, 85 L.Ed.2d 850 (1985). Because Studnicka presented no evidence supporting either prong of Rente, we find no error in the sentencing proceeding. . 18 U.S.C. § 3162(a)(2) (1982) further provides that: In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution ... on the administration of justice. . As we mentioned in Part I., supra, appellant pled guilty to the bail-jumping charge prior to trial. . Appellant" }, { "docid": "22927500", "title": "", "text": "of Yamanis' sentencing, Rule 32 required only that the court \"afford the defendant or his counsel an opportunity to comment thereon and, at the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report.” Fed.R.Crim.P. 32(c)(3)(A). While recognizing Rule 32(c)(3)(D) as a salutory measure, we note that it does not purport to state the requirements of due process. We also note that in this case the district court fully complied with the rule then in force. . Compare United States v. Espinoza, 481 F.2d 553, 556 (5th Cir.1973) (due process requires that defendant be afforded opportunity to rebut representations in presentence report only “where a sentencing judge explicitly relies on [that] information in assessing a sentence”), with United States v. Robin, 545 F.2d 775, 779 (2d Cir.1976) (\"Where there is a possibility that sentence was imposed on the basis of false information or false assumptions concerning the defendant, an appeal will lie to this Court and the sentence will be vacated”). . In this regard, the present case is distinguishable from United States v. Robin, 545 F.2d 775 (2d Cir.1976), in which the defendant had entered a guilty plea. The Robin court observed, \"Without the benefit of a trial, the sentencing judge necessarily leaned heavily on the presentence report ... as [a source] of information concerning the appellant’s behavior and alleged criminal acts.” Id. at 781. . Hence this case differs from McGee v. United States, 462 F.2d 243 (2d Cir.1972), for there the invalid premise on which the sentence was possibly based was a conviction subsequently vacated on appeal. . Our disposition of this claim is not inconsistent with United States v. Battaglia, 478 F.2d 854 (5th Cir.1972), and United States v. Vasquez, 638 F.2d 507 (2d Cir.1980), cert. denied, 454 U.S. 847, 102 S.Ct. 165, 70 L.Ed.2d 135 (1981), in which the courts of appeal remanded for resentencing in the face of possibly erroneous information or assumptions. In Battaglia, the sentencing judge explicitly \"stated that he was taking into consideration certain facts which he believed to be" } ]

[ { "docid": "9387783", "title": "", "text": "claims were not preempted by ERISA, and therefore removal was improper because there was no federal subject matter jurisdiction. Accordingly, the district court remanded the case to state court. ATESC appeals both the district court’s preemption determination and the remand order. Lyons argues that the decision below was based solely on lack of subject matter jurisdiction; therefore, the district court’s remand is unreviewable under § 1447(d). We review questions of subject matter jurisdiction de novo. Geweke Ford v. St. Joseph’s Omni Preferred Care Inc., 130 F.3d 1355, 1357 (9th Cir.1997). II. Discussion Upon removal, the district court must first determine whether the federal court has subject matter jurisdiction. A federal court has removal jurisdiction if the plaintiffs claims are either exclusively federal or there is a separate and independent federal question. 28 U.S.C. § 1441. In order for a defendant to remove, the federal claims must appear on the face of plaintiffs well-pleaded complaint. Tingey v. Pixley-Richards West, Inc., 953 F.2d 1124, 1129 (9th Cir.1992). However, in an ERISA case where the basis of removal is defendant’s claim of preemption, the federal court has jurisdiction under the theory of complete preemption which is distinct from ordinary preemption. Holman v. Laulo-Rowe Agency, 994 F.2d 666, 668 (9th Cir.1993); See also 14-B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3722.1 (3d ed.1998). The complete preemption doctrine applies when the class of claims by plaintiff is so necessarily federal that removal is always permitted, even if the federal issue is raised as a defense and does not appear on the face of plaintiffs well-pleaded complaint. Holman, 994 F.2d at 668 (recognizing that the doctrine of complete preemption does not have wide applicability because it selves as an “exception to the ‘well-pleaded complaint rule’ which makes the plaintiff the master of his or her complaint”). The Supreme Court extended the complete preemption doctrine to ERISA in Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66-67, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Thus, in order to determine if federal jurisdiction is present and removal appropriate," } ]

[ { "docid": "16893902", "title": "", "text": "only state-law claims and the parties were not diverse, the Mall could not have filed its suit in federal court in the first instance. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Even if the Union anticipated raising preemption as a federal defense, that would not have been grounds for removal. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). “The presence or absence of federal-question jurisdiction is governed by the “well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425. “As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). The well-pleaded complaint rule means that “a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Caterpillar, 482 U.S. at 393,107 S.Ct. 2425. Under these principles, the district court here would have been obligated to decline jurisdiction over the Mali’s complaint and remand to state court. After remand, the Union would have been free to assert its defense of federal preemption and ask the state court to dismiss the Mali’s claims. The state court’s judgment on any federal preemption defense then would have been reviewable by California appellate courts and, ultimately, by the U.S. Supreme Court. Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 12 n. 12, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). The Supreme Court has recognized, however, an “independent corollary to the well-pleaded complaint rule known as the complete pre-emption doctrine.” Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425 (internal quotation marks and citation omitted)." }, { "docid": "2106743", "title": "", "text": "state court. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992) (per curiam) (internal quotation marks omitted). “ ‘The threshold requirement for removal under 28 U.S.C. § 1441 is a finding that the complaint contains a cause of action that is within the original jurisdiction of the district court.’ ” Ansley v. Ameriquest Mortgage Co., 340 F.3d 858, 861 (9th Cir.2003) (quoting Toumajian v. Frailey, 135 F.3d 648, 653 (9th Cir.1998)). In determining federal question jurisdiction, the well-pleaded complaint rule “provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Fisher v. NOS Commc’ns (In re NOS Commc’ns), 495 F.3d 1052, 1057 (9th Cir.2007) (internal quotation marks and citations omitted). Thus, the plaintiff is “the master of his complaint” and may “avoid federal jurisdiction by relying exclusively on state law.” Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1106 (9th Cir.2000). It is “settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties admit that the defense is the only question truly at issue in the case.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 14, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); see also Vaden v. Discover Bank, - U.S. -, -, 129 S.Ct. 1262, 1272, 173 L.Ed.2d 206 (2009) (“Federal jurisdiction cannot be predicated on an actual or anticipated defense.”); Valles v. Ivy Hill Corp., 410 F.3d 1071, 1075 (9th Cir.2005) (“A federal law defense to a state law claim does not confer jurisdiction on a federal court, even if the defense is that of federal preemption and is anticipated in the plaintiffs complaint.”); Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1319 (9th Cir.1998) (“Even when the area involved is one where complete preemption is the norm, if the complaint relies on claims outside of the preempted area and does not present a federal claim on its face, the defendant must raise" }, { "docid": "15194176", "title": "", "text": "were preempted by SLUSA. Patenaude appeals. We review a district court’s denial of a motion to remand a removed case de novo. Audette v. ILWU, 195 F.3d 1107, 1111 (9th Cir.1999). We review a district court’s dismissal of a complaint for failure to state a claim de novo. Oscar v. Univ. Students Coop. Ass’n, 965 F.2d 783, 785 (9th Cir.1992) (en banc). II At issue in this appeal is whether federal law prevents Patenaude from asserting state law claims against Equitable Life based upon the misrepresentations Equitable Life allegedly made while marketing and selling variable annuities. The resolution of this issue depends upon whether SLUSA is applicable to and thus preempts Patenaude’s state law claims. If so, then the district court properly denied Pate-naude’s motion to remand and dismissed the complaint. If not, then the district court did not have subject matter jurisdiction and so should have remanded the case to state court. Patenaude’s complaint includes only state law causes of action. Thus, ordinarily the district court would not have subject matter jurisdiction, since “[t]he presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded’ complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). “[A] case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Id. at 393, 107 S.Ct. 2425 (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 12, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)) (emphasis in original). However, a statute may so completely preempt state law that it occupies the entire field, barring assertion of any state law claims and permitting removal to federal court. Id.; see also Paige v. Henry J. Kaiser Co., 826 F.2d 857, 860-61 (9th Cir.1987). Thus, the district court had" }, { "docid": "21556735", "title": "", "text": "motion for summary judgment on all of plaintiff’s claims. Newberry appeals from the court’s grant of summary judgment. II. Summary judgment may be granted only if no genuine issue of material fact exists.' Rule 56(c), Fed.R.Civ.P. An issue is “genuine” only if the evidence is such that a reasonable jury could find for the nonmov-ing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). 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. at 249, 106 S.Ct. at 2511. On review, this court applies the same test that the district court should have adopted. Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1328 (9th Cir.1983). III. We first must decide whether Newber-ry’s state law claim for breach of an implied covenant of good faith and fair dealing is subsumed by section 301 of the LMRA, so that it is in substance a federal claim removable to federal district court. Newberry argues that the district court erred in holding that her cause of action is preempted by section 301. She says that her claim falls outside the scope of federal law because it does not require an analysis of the terms of the collective bargaining agreement. The presence or absence of federal question jurisdiction that will support removal is governed by the well-pleaded complaint rule, under which federal jurisdiction exists only when a federal question is presented on the face of a properly pleaded complaint. Caterpillar Inc. v. Williams, — U.S. -, -, 107 S.Ct. 2425, 2428, 96 L.Ed.2d 318 (1987). Ordinarily, a case may not be removed on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the complaint and both parties concede that it is the only question truly at issue. See Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust, 463 U.S. 1, 12, 103 S.Ct. 2841, 2847, 77 L.Ed.2d 420 (1983)." }, { "docid": "11095109", "title": "", "text": "1542, 95 L.Ed.2d 55 (1987). A defense is not part of a plaintiffs properly pleaded statement of his claim. See Gully v. First Nat’l Bank in Meridian, 299 U.S. 109, 113, 57 S.Ct. 96, 81 L.Ed. 70 (1936). Therefore, “a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (emphasis in original); see also Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 12, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). The “complete preemption doctrine” provides an exception to this general proposition. The Supreme Court has concluded that the preemptive force of some federal statutes is so strong that they “completely preempt” an area of state law. Taylor, 481 U.S. at 63-64, 107 S.Ct. 1542. “In such instances, any claim purportedly based on that preempted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1107 (9th Cir.2000). The Supreme Court has construed only three federal statutes to so preempt their respective fields as to authorize removal of actions seeking relief exclusively under state law: section 301 of the Labor and Management Relations Act (“LMRA”), 29 U.S.C. § 185; section 502 of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132; and sections 85 and 86 of the National Bank Act, 12 U.S.C. §§ 85, 86. See Avco Corp. v. Machinists, 390 U.S. 557, 561-62, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968); Taylor, 481 U.S. at 65-67, 107 S.Ct. 1542; Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6-11, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Most recently, in Beneficial National Bank, the Court clarified that removal is proper under the complete preemption doctrine only when Congress intended the federal cause of action to be exclusive." }, { "docid": "501284", "title": "", "text": "et seq. Doubts as to removability are usually resolved in favor of remanding the case to state court. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); See also Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir.1988). The defendant has the burden of establishing that removal is proper. See Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n. 3 (9th Cir.1990). Removal is only appropriate for cases that might have originally been brought in federal court. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Cases arise under federal law only if the complaint establishes either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on the resolution of substantial questions of federal law. See Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). The plaintiff is the master of the claim, and federal jurisdiction exists only when a federal question is presented on the face of the properly pleaded complaint. See Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425 (citing Gully v. First Nat'l Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 81 L.Ed. 70 (1936)). “[I]t is well settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Id. at 393, 107 S.Ct. 2425 (italics in original) (citing Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. at 12, 103 S.Ct. 2841.) However, there exists an “ ‘independent corollary’ to the well-pleaded complaint rule” called the “ ‘complete preemption’ ” doctrine. Id. at 393, 107 S.Ct. 2425 (quoting Franchise Tax Board, 463 U.S. at 22, 103 S.Ct. 2841). Complete preemption occurs where the “preemptive force of a statute” is so" }, { "docid": "5061710", "title": "", "text": "has the burden of establishing the grounds for federal jurisdiction. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir.2004). A district court’s federal-question jurisdiction extends over “only those cases in which a well-pleaded complaint establishes either the federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law.” Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (quoted in Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808-09, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)). Thus, the “presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (internal quotations and citations omitted); Vaden v. Discover Bank, 556 U.S. 49, 129 S.Ct. 1262, 1272, 173 L.Ed.2d 206 (2009). “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)." }, { "docid": "19852299", "title": "", "text": "or she may avoid federal jurisdiction by exclusive reliance on state law” in a properly pleaded complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429-30, 96 L.Ed.2d 318 (1987). In Caterpillar the Supreme Court reviewed the settled law that “a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.” 482 U.S. at 393, 107 S.Ct. at 2430 (emphasis in original). Accord, e.g., Franchise Tax Bd., 463 U.S. at 12, 103 S.Ct. at 2847-48; Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152-54, 29 S.Ct. 42, 43—44, 53 L.Ed. 126 (1908) (allegations in complaint anticipating a federal defense to claim arising under state law do not support federal question jurisdiction). A special application of the well-pleaded complaint rule applies to a few federal statutes. The Supreme Court has held that those statutes have “extraordinary” preemptive force over an entire area of law such that a claim purportedly based on state law is necessarily a federal claim arising under federal law for purposes of subsequently applying the well-pleaded complaint rule to determine jurisdiction. Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430. The Labor Relations Management Act (“LMRA”) is one of the two principal statutes where the courts have applied “complete” preemption. (ERISA is the other one) Section 301 of the LMRA provides that a federal court has jurisdiction over a claim based on an alleged violation of a contract between an employee’s employer and the employee’s labor union. 29 U.S.C. § 185. “Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301.” Franchise Tax Bd., 463 U.S. at 23, 103 S.Ct. at 2853-54. The Supreme Court has recognized two types of claims that § 301 completely preempts. First, § 301 displaces state law claims founded directly on rights created" }, { "docid": "12756674", "title": "", "text": "Thus, we affirm the district court’s dismissal of plaintiffs’ FCA claims. IV. Sound Travel contends that the district court erred in denying its motion for remand. Sound Travel’s complaint alleges only one legal claim: violation of the Washington Consumer Protection Act. In essence, Sound Travel alleges that NOS violated the Washington Consumer Protection Act by marketing false billing information and by failing to notify consumers of differences between the quoted price and the actual price. It seeks damages due to economic loss, reasonable attorney’s fees and litigation expenses, and treble, exemplary and/or punitive damages. We review de novo the district court’s denial of Sound Travel’s motion to remand. See Audette v. Int’l Longshoremen’s & Ware-housemen’s Union, 195 F.3d 1107, 1111 (9th Cir.1999). A defendant may remove an action originally filed in state court only if the case originally could have been filed in federal court. 28 U.S.C. § 1441(a), (b). Where, as here, no diversity of citizenship exists, a federal question is required for removal. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); 28 U.S.C. § 1331. “The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425. “[I]t is now settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Id. at 393, 107 S.Ct. 2425. A corollary to the well-pleaded complaint rule is the “complete preemption” doctrine, which applies in cases in which “the preemptive force of a statute is so extraordinary that it converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Id. (internal citations & quotation marks omitted). “Once an area of state law" }, { "docid": "8697070", "title": "", "text": "depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). B. General Removal and Preemption Standards A defendant may remove any civil action filed in state court over which federal district courts have original jurisdiction. 28 U.S.C. § 1441; Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Federal district courts, in turn, have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Ordinarily, a court must determine the presence or absence of a federal question by examining only the plaintiffs well-pleaded complaint. Caterpillar Inc., 482 U.S. at 392, 107 S.Ct. 2425. This rule requires that a federal question appear on the face of the complaint. Bastien v. AT & T Wireless Servs., Ina, 205 F.3d 983, 986 (7th Cir.2000) (citing Franchise Tax Bd. of California v. Constr. Laborers Vacation Trust for S. California, 463 U.S. 1, 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). The plaintiff, as the master of his own complaint, may avoid federal jurisdiction by pleading only state-law claims. Id. Most often, a defendant raises federal preemption as a defense to a state-law action. Caterpillar Inc., 482 U.S. at 392, 107 S.Ct. 2425. A case may not be removed, however, based on a federal defense, “even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Id.; see Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). “On occasion, the Court has concluded that the preemptive force of a statute is so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’ ” Caterpillar Inc.," }, { "docid": "8381272", "title": "", "text": "the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185 (2005). The employees moved the district court to remand the matter to state court, while Ivy Hill moved for summary judgment on the ground of preemption. The district court denied the employees’ motion to remand and granted summary judgment in favor of Ivy Hill. The employees -appealed. We have jurisdiction under 28 U.S.C. § 1291 and review the district court’s find ing of preemption under § 301 de novo. Cramer v. Consolidated Freightways, 255 F.3d 683, 689 (9th Cir.2001) (en banc) (as amended). II. DISCUSSION A Complete Preemption Doctrine Federal jurisdiction typically exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint. Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1106 (9th Cir.2000) (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). A federal law defense to a state-law claim does not confer jurisdiction on a federal court, even if the defense is that of federal preemption and is anticipated in the plaintiffs complaint. Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 14, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). This rule makes a plaintiff the “master of his complaint”: He may generally avoid federal jurisdiction by pleading solely state-law claims. Balcorta, 208 F.3d at 1106. An exception to the general rule exists, however, when thé preemptive force of a statute is so strong that it “completely preempt[s]” an area of state law. Id. at 1107; see also Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). In such circumstances, federal law displaces a plaintiffs state-law claim, no matter how carefully pleaded. Gregory v. SCIE, LLC, 317 F.3d 1050, 1052 (9th Cir.2003). This is because the “claim purportedly based on ... [a] preempted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Balcorta, 208 F.3d at 1107 (citing Franchise Tax Bd., 463 U.S. at 24, 103 S.Ct. 2841). The complete preemption exception" }, { "docid": "17342699", "title": "", "text": "defendant was entitled tó summary judgment on the plaintiffs breach-of-the-implied-warranty-of-fitness-for-a-particular-purpose claim). LAW REGARDING FEDERAL-QUESTION JURISDICTION A federal district court has “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal-question jurisdiction exists when “a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)(citing Gully v. First Nat’l Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 81 L.Ed. 70 (1936)). As “the master of the claim,” the plaintiff may choose to sue in state court rather than in federal court “by exclusive reliance on state law.” Caterpillar, Inc. v. Williams, 482 U.S. at 392, 107 S.Ct. 2425. The defendant may not try to sneak a federal question through the back door by raising a federal defense, for “it is now settled law that a case may not be removed to federal court on the basis of a federal defense ... even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Caterpillar, Inc. v. Williams, 482 U.S. at 393, 107 S.Ct. 2425 (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 12, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). See Nicodemus v. Union Pac. Corp., 318 F.3d 1231, 1236 (10th Cir. 2003)(“It is well settled that ‘[a] defense that raises a federal question is inadequate to confer federal jurisdiction.’” (quoting Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 660 (1986))). While a plaintiff is free to plead a federal question in his complaint, “a defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated.” Caterpillar, Inc. v. Williams, 482 U.S. at 399, 107 S.Ct. 2425. Even the plaintiff can go only so far in attempting" }, { "docid": "8381271", "title": "", "text": "meal period. Despite this contract language, from the time that the printing facility opened until June 2002, employees who worked on the first shift were not afforded lunch periods. Instead, they worked through lunch and were paid at their normal hourly rate for their working lunches. No employee filed a grievance about this practice. In June 2002, Ivy Hill instituted non-working, unpaid lunch periods. Three months later, employees Valles and Breslin brought a class action lawsuit in state court, alleging that until June 2002 Ivy Hill had failed to provide them with uninterrupted thirty minute meal periods and ten minute rest breaks. The employees based their claims entirely on the provisions of state law and not on any terms contained in their collective bargaining agreement. They sought penalties back to October 1, 2000, the date upon which they contend that the state’s meal period and rest break penalty provisions became applicable. Ivy Hill removed' the case to federal court on the ground that the employees’ meal period claims were completely pre-empted by Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185 (2005). The employees moved the district court to remand the matter to state court, while Ivy Hill moved for summary judgment on the ground of preemption. The district court denied the employees’ motion to remand and granted summary judgment in favor of Ivy Hill. The employees -appealed. We have jurisdiction under 28 U.S.C. § 1291 and review the district court’s find ing of preemption under § 301 de novo. Cramer v. Consolidated Freightways, 255 F.3d 683, 689 (9th Cir.2001) (en banc) (as amended). II. DISCUSSION A Complete Preemption Doctrine Federal jurisdiction typically exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint. Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1106 (9th Cir.2000) (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). A federal law defense to a state-law claim does not confer jurisdiction on a federal court, even if the defense is that of federal preemption and is anticipated" }, { "docid": "21626581", "title": "", "text": "esophageal cancer meant that surgery was no longer practicable; the growth of his aneurysm meant that he was not a good candidate for aggressive chemotherapy; and his advanced prostate cancer foreclosed other treatments for his esophageal cancer. II. Proceedings Below After Mr. Hofler died, Ms. Hofler filed a complaint against Aetna in California state court alleging 12 state law causes of action. Aetna removed the action to federal district court, claiming that Ms. Hofler’s action arose under and was completely preempted by Medicare. Ms. Hofler moved to remand to state court. The district court granted the motion and awarded attorneys’ fees to Ms. Hofler. Aetna timely appealed the' award of attorneys’ fees. III. Standard of Review Although an “order remanding a case to. the State court from which it was removed is not' reviewable on appeal,” 28 U.S.C. § 1447(d), we have jurisdiction to review for abuse of discretion an award of attorneys’ fees in connection with a remand order. Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1105 (9th Cir.2000). Abuse of discretion review requires us to examine de novo “whether the remand order was legally correct.” Id. at 1106. IV. Removal An action can be removed from state court to federal court if it could have been filed in federal court originally. 28 U.S.C. § 1441(a); Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Because the removal in this case was based on federal question jurisdiction, the propriety of removal depends on whether the district court would have had federal question jurisdiction originally. Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 8, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). The removal statute is “strictly construed against removal jurisdiction.” Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir.1988). Whether federal question jurisdiction exists is governed by the well-pleaded complaint rule. Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425. Under this rule, the federal question must appear “on the face of the plaintiffs properly pleaded complaint.” Id. Federal question jurisdiction lies for" }, { "docid": "20664237", "title": "", "text": "see also Wash. Consulting Grp., Inc. v. Raytheon Technical Servs. Co., 760 F.Supp.2d 94, 99 (D.D.C.2011) (citing Wexler v. United Air Lines, Inc., 496 F.Supp.2d 150, 152 (D.D.C.2007)). “Courts must strictly construe removal statutes, resolving any ambiguities regard ing the existence of removal jurisdiction in favor of remand.” Busby, 932 F.Supp.2d at 127. Where, as here, a plaintiff moves to remand its action back to state' court, “[t]he removing party bears the burden of showing that federal subject matter jurisdiction exists.” Wexler, 496 F.Supp.2d at 152 (citation omitted). There are several bases for original subject matter jurisdiction in federal courts, including federal question jurisdiction under section 1331 of title 28 of the U.S. code, which grants federal district courts jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “The presence or absence of federal-question jurisdiction is governed by the “well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). When a plaintiffs cause of action lies in state law, “the court must determine whether the adjudication of those state law claims requires resolution of a substantial question of a federal law, because the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction.” Harding-Wright v. Dist. of Columbia Water & Sewer Auth., 350 F.Supp.2d 102, 104-105 (D.D.C.2005) (internal quotation marks and citations omitted). Ordinarily, “a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425 (emphasis in original) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 12, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). However, there is a caveat" }, { "docid": "10620", "title": "", "text": "the LMRA completely preempts all but one of plaintiffs state-law claims. Removal of a state action to federal court is proper only if the action “originally could have been filed in federal court.” Caterpillar v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); see also 28 U.S.C. § 1441. Absent diversity of citizenship, federal-question jurisdiction is required to support removal. Id. at 392, 107 S.Ct. 2425. It is well-established that “a case is not removable to federal court simply because ... the defendant raises federal preemption as a defense.” Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 228 (3d Cir.1995); see also Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425 (“[I]t is now settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.”). The question of whether federal question jurisdiction exists is determined by the “well-pleaded complaint rule,” which requires that a federal question be “presented on the face of the plaintiffs properly pleaded complaint.” Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425; see also Trans Penn, 50 F.3d at 228. Generally, the well-pleaded complaint rule “makes the plaintiff the master of the claim.” Id. at 392, 107 S.Ct. 2425; see also Trans Penn, 50 F.3d at 228 (same). The rule permits the plaintiff to “avoid federal jurisdiction by exclusive reliance on state law.” Id. at 392, 107 S.Ct. 2425. The well-pleaded complaint rule is not absolute, however, because under the appropriate circumstances “a defendant may be able to remove a case notwithstanding a complaint’s apparent grounding in state law.” Trans Penn, 50 F.3d at 228. The doctrine of complete preemption presents one such circumstance. Id.; see also Berda v. CBS, 881 F.2d 20, 22 fn. 1 (3d Cir.1989) (discussing how complete preemption operates to permit removal despite the fact that the claim was pled as a state claim because “the claim is actually" }, { "docid": "16557245", "title": "", "text": "omitted). Accordingly, in reviewing the award of attorney fees, we must first consider the merits of Ameriquest’s arguments in favor of removal to the district court. Id. A. Alternative Mortgage Transaction Parity Act of 1982 Ameriquest filed its notice of removal and corrected notice of removal under 28 U.S.C. § 1441(b). “The threshold requirement for removal under 28 U.S.C. § 1441 is a finding that the complaint contains a cause of action that is within the original jurisdiction of the district court.” Toumajian v. Frailey, 135 F.3d 648, 653 (9th Cir.1998). Here, Ameriquest contends that Ansley’s claims arise under federal law, specifically, the Parity Act, and thus fall within the district court’s federal question jurisdiction pursuant to 28 U.S.C. § 1331. In scrutinizing a complaint in search of a federal question, a court applies the well-pleaded complaint rule. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). For removal to be appropriate under the well-pleaded complaint rule, a federal question must appear on the face of a properly pleaded complaint. Rivet v. Regions Bank of La., 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998). Ameriquest does not argue that a federal question appears on the face of Ansley’s complaint. Rather, Ameriquest argues that federal jurisdiction is proper because Ansley’s claims are completely preempted by the Parity Act and applicable regulations promulgated by the Office of Thrift Supervision. The jurisdictional doctrine of complete preemption serves as an exception to the well-pleaded complaipt rule. Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1107 (9th Cir.2000). It provides that, in some instances, “the preemptive force of [federal statutes] is so strong that they completely preempt an area of state law. In such instances, any claim purportedly based on that preempted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Id. (citations and quotation marks omitted). “[C]om-plete preemption occurs only when Congress intends not merely to preempt a certain amount of state law, but also intends to transfer jurisdiction of the subject matter from state to federal" }, { "docid": "10619", "title": "", "text": "plaintiffs state-law claims stem from the rights, duties, and obligations created by the BLA. They argue that plaintiffs claims are either founded directly on the collective bargaining agreement or substantially dependent on its analysis. Consequently, defendants assert that removal was proper as all of plaintiffs claims fall within the preemptive scope of § 301 and thus are federal in nature. Accordingly, defendants contend that plaintiffs claims are time-barred under the applicable limitations period for § 301 claims and therefore should be dismissed. Plaintiff asserts that this action improperly was removed as the matters she asserted in her complaint do not constitute a claim arising under federal law. Plaintiff disputes that her state-law claims implicate the BLA to a degree sufficient to trigger the preemptive power of § 301. Plaintiff further reasons that remand is appropriate because the BLA is ancillary to the crux of the complaint, which focuses on the purportedly unlawful representations and actions taken by defendants. The record as well as the applicable law demonstrate that removal was proper and § 301(a) of the LMRA completely preempts all but one of plaintiffs state-law claims. Removal of a state action to federal court is proper only if the action “originally could have been filed in federal court.” Caterpillar v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); see also 28 U.S.C. § 1441. Absent diversity of citizenship, federal-question jurisdiction is required to support removal. Id. at 392, 107 S.Ct. 2425. It is well-established that “a case is not removable to federal court simply because ... the defendant raises federal preemption as a defense.” Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 228 (3d Cir.1995); see also Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425 (“[I]t is now settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.”). The question of whether federal question" }, { "docid": "11541778", "title": "", "text": "removed pursuant to 28 U.S.C. § 1441(b). On November 22, 2004, Plaintiffs filed the present motion for remand. STANDARD OF LAW A defendant is entitled to remove to federal court any civil action over which the federal court has original jurisdiction. 28 U.S.C. § 1441. The Ninth Circuit strictly construes the removal statute against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992). “The ‘strong presumption’ against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.” Id. (quoting St. Paul Mercury Indem. Co. v. Red Cab, Co., 303 U.S. 283, 288-90, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the ease shall be remanded.” 28 U.S.C. § 1447(c). “The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The Supreme Court has held that under the complete preemption doctrine, “the preemptive force of some statutes is so strong that they ‘completely preempt’ an area of state law.” Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1107 (9th Cir.2000) (citing Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). In such instances, any claim purportedly based on that preempted state law is considered, from its inception, a federal claim, and therefore arises under federal law. Id. (citing Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 24, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). DISCUSSION A. Whether Plaintiffs’ State Law Claims are Preempted by the LMRA Section 301 of the LMRA governs claims founded directly on rights created by collective-bargaining agreements, and also claims substantially dependent on analysis of a collective-bargaining agreement. Caterpillar, Inc., 482 U.S. at 394, 107 S.Ct. 2425. The LMRA does not preempt an employee’s independent, freestanding state rights. Id." }, { "docid": "5916650", "title": "", "text": "not apply. Lyons v. Alaska Teamsters Employer Serv. Corp., 188 F.3d 1170, 1173 (9th Cir.1999). In this case, resolution of the substantive legal question was a necessary predicate to deciding the existence of subject matter jurisdiction. “The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs well-pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392-93, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (citing Gully v. First Nat’l Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 81 L.Ed. 70 (1936)). The plaintiff is the “master of the claim,” and “may avoid federal jurisdiction by exclusive reliance on state law.” Id. A plaintiff may also choose to invoke federal jurisdiction by pleading a federal claim. However, the choice belongs to the plaintiff. “[A] case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Id. (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 12, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). Of course, a statute may so completely preempt state law that it occupies the en tire field, barring assertion of any state law claims and permitting removal to federal court. Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425; see also Paige v. Henry J. Kaiser Co., 826 F.2d 857, 860-61 (9th Cir.1987). Schwab argues that the complete preemption rule applies here. In order to decide whether it had subject matter jurisdiction, the district court was required to decide whether Abada’s claims were completely preempted by SLUSA. Because construction of SLUSA was necessary for the resolution of subject matter jurisdiction, the Clorox/Pelleport exception does not apply to create appellate jurisdiction. C It is also irrelevant that its removal and the district court’s remand order were based in part on SLUSA’s express removal and remand provisions. SLUSA does contain" } ]

[ { "docid": "1134074", "title": "", "text": "case. Accordingly, the first prong of section 707(b) has been met. The second prong is whether “substantial abuse” exists. This court in several decisions has held that the following are the criteria against which the facts of a particular case are to be assessed in determining whether substantial abuse exists sufficient to mandate dismissal under section 707(b): 1. Whether the debtor has a likelihood of sufficient future income to fund a Chapter 13 plan which would pay a substantial portion of the unsecured claims; 2. Whether the debtor’s petition was filed as a consequence of illness, disability, employment or some other calamity; 3. Whether the schedules suggest the debtors incurred cash advances and consumer purchases in an excess of their ability to repay them; 4. Whether the debtor’s proposed family budget is excessive or extravagant; 5. Whether the debtor’s statement of income and expenses is misrepresenta-tive of their true financial condition. In re Kress, 57 B.R. 874 (Bankr.D.N.D.1985). The most important criteria is the debtor’s ability to make repayment. The Eighth Circuit in the recent decision of In re Walton, 866 F.2d 981 (8th Cir.1989), held that while a court may indeed take a debt- or’s unique hardships into consideration, the crucial factor in determining “substantial abuse” is whether the debtor’s future income could fund a repayment plan under the protection of Chapter 13. The Debtor’s wife is not a co-debtor in this case and, as the Debtor correctly points out, spousal income should not be made liable for debts incurred by the Debt- or. As husband and wife, however, the Debtor and his non-joining spouse maintain a joint household and most of their living expenses are, as is typical, incurred in that fashion without segregation or regard as to which spouse consumed the benefit. Home mortgage, maintenance, utilities, taxes, transportation, insurance and other daily living • expenses are of the type normally borne by both spouses living under one roof. Hence, in calculating whether there is discretionary income available to fund a plan one must, of necessity, observe to what degree a debtor’s daily living expenses are shared as" } ]

[ { "docid": "3312437", "title": "", "text": "month toward the support of her adult son, $663.00 per month toward her unspecified insurance, and $800.00 towards a step grandson’s daycare. In fact, her individual expenses, which total $4,522.00 exceed her monthly net income by $859.00, leaving her with nothing to contribute toward the parties’ joint expenses, including rent, utilities, food, clothing, transportation or medical and dental expenses. Consequently, I find that the Debtor is paying all of the parties’ day to day living expenses, with his wife contributing nothing from her earnings toward their joint expenses. I must, therefore, determine whether, given these facts, the Debtor has the ability to fund a Chapter 13 plan. As noted, the test for determining whether a debtor has the ability to fund a Chapter 13 plan is identical to that used to determine whether the debtor is committing all of his disposable income to a proposed Chapter 13 plan. Disposable income is defined as “income which is received by the debtor and which is not reasonably necessary to be expended— (A) for the maintenance or support of the debtor or a dependent of the debtor ....” 11 U.S.C. § 1325(b)(2)(A). The Ninth Circuit has not addressed the issue of whether the income of a non debt- or spouse should be included with that of the debtor for purposes of this test. However, most courts which have addressed the issue have, at a minimum, required the consideration of the non debtor spouse’s income, see, e.g., In re Engskow, 247 B.R. 314 (Bankr.M.D.Fla.2000); In re Cardillo, 170 B.R. 490 (Bankr.D.N.H.1994); In re Bottorff, 232 B.R. 171 (Bankr.W.D.Mo. 1999) while others have required that the income of the non debtor spouse be included with that of the debtor. In re Staub, 256 B.R. 567 (Bankr.M.D.Pa.2000), In re Carter, 205 B.R. 733 (Bankr.E.D.Pa.1996); In re Saunders, 60 B.R. 187 (Bankr. N.D.Ohio 1986). “Congress expressed no intention that 707(b) should effect a non-debtor or that any non-debtor should be required to tighten his or her belt in order to assist the debtor in paying debts.” In re Attanasio, 218 B.R. 180, 235 (Bankr.N.D.Ala. 1998). Nevertheless, “[i]n" }, { "docid": "16175484", "title": "", "text": "1207, 94 L.Ed.2d 434 (1987)). The Court concludes that a debtor’s ability to pay her creditors must be considered in the context of a Section 707(b)(3)(B) analysis. B. Does This Case Constitute an Abuse of Chapter 7 Pursuant to Section 707(b)(8)(B)? In the Fourth Circuit, a review of the Green factors is necessary to a determination of abuse under Section 707(b)(3)(B). 1. Excessive or Unreasonable Family Budget Courts look to the facts of a case to determine whether debtors have an excessive or unreasonable family budget. The Bankruptcy Administrator argues that the Debtors’ housing payment renders their budget unreasonable and that the House is too expensive. In spite of the fact that they have tried to sell the House for the better part of three years, the Debtors now want to keep the House and pay the mortgage payments. A debtor’s budget may be excessive or unreasonable based on a high mortgage payment. E.g., In re Moreland, No. 05-10519, 2005 WL 1925460 at *5-6 (Bankr.M.D.N.C. Aug. 3, 2005) (finding that mortgage payments of $2,604 on a $240,000 house with no equity, consuming a large percentage of their monthly income, was unreasonable); Shaw v. United States Bankr. Adm’r (In re Shaw), 310 B.R. 538, 541 (M.D.N.C.2004) (finding that the debtors earned $7,804.11 in net monthly income and that a mortgage payment of $3,349 on a $415,000 house was unreasonable in that it manifested a desire to hold on to a station in life that seemed to precipitate the bankruptcy in the first place); Schmonsees, 2001 WL 1699664 at *3 (holding that mortgage payments of $2,450 on a $290,000 four-bedroom home in an upscale neighborhood occupied by two people was excessive when the debtor and his non-filing spouse earned a net pay of $5,400 per month); In re Engskow, 247 B.R. 314, 316-17 (Bankr.M.D.Fla.2000) (stating that mortgage, taxes, and insurance expenses of $2,184 were excessive when the debtor’s net income was $3,548 and when the debtor did not include the income of his spouse on the schedules); United States Trustee v. Duncan (In re Duncan), 201 B.R. 889, 896 (Bankr.W.D.Pa.1996) (finding a" }, { "docid": "3312438", "title": "", "text": "of the debtor or a dependent of the debtor ....” 11 U.S.C. § 1325(b)(2)(A). The Ninth Circuit has not addressed the issue of whether the income of a non debt- or spouse should be included with that of the debtor for purposes of this test. However, most courts which have addressed the issue have, at a minimum, required the consideration of the non debtor spouse’s income, see, e.g., In re Engskow, 247 B.R. 314 (Bankr.M.D.Fla.2000); In re Cardillo, 170 B.R. 490 (Bankr.D.N.H.1994); In re Bottorff, 232 B.R. 171 (Bankr.W.D.Mo. 1999) while others have required that the income of the non debtor spouse be included with that of the debtor. In re Staub, 256 B.R. 567 (Bankr.M.D.Pa.2000), In re Carter, 205 B.R. 733 (Bankr.E.D.Pa.1996); In re Saunders, 60 B.R. 187 (Bankr. N.D.Ohio 1986). “Congress expressed no intention that 707(b) should effect a non-debtor or that any non-debtor should be required to tighten his or her belt in order to assist the debtor in paying debts.” In re Attanasio, 218 B.R. 180, 235 (Bankr.N.D.Ala. 1998). Nevertheless, “[i]n calculating whether there is discretionary income available ... one must, of necessity, observe to what degree a debtor’s daily living expenses are shared as co-obligations of the non-debtor spouse ....” In re Staub, 256 B.R. at 571. Consequently, “... a court should assume that each party to a relationship, to the extent of his or her income, shares equally in paying the family living expenses and the court should attribute at least one-half of the family living expenses to the debtor and the other half to the non-debtor spouse. The appropriate measure of the debtor’s ability to pay for purposes of 707(b) would then be the debtor’s sole income minus a one-half share of the family living expenses .... ” In re Attanasio, 218 B.R. at 234-235. See also In re Saunders, 60 B.R. at 188 (plan under which debtor paid all of the living expenses for he and his wife, even though she could afford to pay her share, effectively forced debtor’s creditors to subsidize the wife’s daily living expenses and was not confirmable)" }, { "docid": "1869662", "title": "", "text": "provisions of this chapter. There shall be a presumption in favor granting the relief requested by the debtor. DISCUSSION This is a core proceeding pursuant to 28 U.S.C. § 157(b)(0). This case presents the primary issue of whether granting relief to this Debtor would be a substantial abuse of the provisions of Chapter 7, thus requiring dismissal pursuant to 11 U.S.C. § 707(b). However, in order to resolve this issue, another issue must be addressed first. The secondary issue is whether the Court should consider the income of a nondebtor spouse when making its inquiry and determination. This Court, in In re Deandria Smith, 157 B.R. 348 (1993), and other Bankruptcy courts, have held that the income of a non-debtor spouse must be taken into account in an inquiry as to whether a ease constitutes a substantial abuse under the provisions of Chapter 7 of the Bankruptcy Code. In the Deandria Smith case this Court relied on Matter of Strong, 84 B.R. 541 (Bankr. N.D.Ind.1988), in which the court compared a substantial abuse inquiry to a Chapter 13 Plan Confirmation and also to undue hardship situations. See also In re Bryant, 47 B.R. 21 (Bankr.W.D.N.C.1984). The court in Strong concluded that all three (3) of those situations “necessitate a determination of how much disposable income, after subtracting the reasonable and necessary expenses will be available to a given debtor. There is no justification for ignoring the impact of a non-petitioning spouse’s income on a debtor’s financial situation.” Strong at 543, (citing In re Kern, 40 B.R. 26 (Bankr.S.D.N.Y.1984)). The present case is a prime example of the importance of the nondebtor spouse’s income to the Debtor. In the schedule which Debtor originally filed, Debtor lists monthly income of Eight Hundred Dollars ($800.00) and monthly expenses for herself of One Thousand Nine Hundred Thirty-four Dollars ($1,934.00). Debtor stated that her nondebt- or spouse contributes to the expenses. Because of nondebtor spouse’s contribution of income towards the expenses, the Debtor can afford a much better lifestyle than without such income. The nondebtor spouse’s income allows Debtor to live in a house with" }, { "docid": "23658745", "title": "", "text": "1325(b)) is impossible unless the income of a non-debtor spouse is included in the budget. Matter of Saunders, 60 B.R. 187 (Bankr.N.D.Ohio 1986). Similarly, various courts have included the non-filing spouse’s income when examining whether a debtor’s student loan should be discharged, due to undue hardship. In re Bagley, 4 B.R. 248, 249 (Bankr.D.Az.1980). In re Lezer, 21 B.R. 783, 789 (Bankr.N.D.N.Y.1982). In this court’s estimation, the circumstances surrounding a substantial abuse inquiry are analogous to those present in Chapter 13 plan confirmation and undue hardship situations. All three necessitate a determination of how much disposable income, after subtracting reasonable and necessary expenses, will be available to a given debtor. There is no justification for ignoring the impact of a non-petitioning spouse’s income on a debt- or’s financial situation. In re Kern, 40 B.R. 26 (Bankr.S.D.N.Y.1984). Accordingly, we conclude that the income of a non-debtor spouse must be taken into account in order to properly determine whether a case constitutes a substantial abuse of the provisions of Chapter 7. IV The foregoing resolution simplifies the task of deciding whether substantial abuse exists in the present case. In relevant part, 11 U.S.C. § 707(b) provides: (b) After notice and hearing, the court, on its own motion or on a motion by the U.S. Trustee, ... may dismiss a case filed by an individual debtor under this Chapter whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this Chapter. There shall be presumption in favor of granting the relief requested by the debtor. This subsection was added to Section 707 by the Bankruptcy Amendments and Federal Judgeship Act of 1984 (BAFJA). The addition of this provision was largely due to Congress’s concerns that Chapter 7 relief was increasingly being sought by debtors with the ability to repay a substantial portion of their debts. In re Grant, 51 B.R. 385, 389-392 (Bankr.N.D.Ohio 1985). See 130 Cong.Rec. H1810-12 (daily ed. March 21, 1984). Thus, it was designed to provide the bankruptcy court with the means to deny Chapter 7 relief" }, { "docid": "16529257", "title": "", "text": "for greater “needs” than that. So to fully answer the question of whether one “needs” a discharge, one must first determine what the ultimate intent or purpose of bankruptcy is. The Supreme Court long ago pronounced that the primary intent of a bankruptcy liquidation and discharge is to provide “the honest but unfortunate debtor ... a new opportunity in life and a dear field for future effort, unhampered by the pressure and discouragement of pre-existing debt” Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230 (1934) (emphasis added). This pronouncement of the meaning of a “fresh start” has become the anthem of bankruptcy. Thus, if “substantial abuse” means that a debtor does not “need” a Chapter 7 discharge and if the purpose of a Chapter 7 discharge is to give a debtor a fresh start, and if a “fresh start” means a clear field for future effort without the burden of insurmountable debt, then substantial abuse may be found whenever a petitioning debtor does not in fact need a clear field for future effort unhampered by the pressure of pre-existing debt. “A vast majority of both courts and commentators have opined that a debtor’s ability to pay is the sine qua non of section 707(b)”. In re Attanasio, 218 B.R. 180 (Bankr.N.D.Ala.1998). In other words, the essential element in a 707(b) case is proof that the debtor is able to pay his debts. Such ability obviously depends on the amount of the debtor’s income and his expenses. I have previously held, as most courts, that in determining a debtor’s income for Section 707(b) purposes, a court must consider the income and expenses of both the debtor and a non-debtor spouse. In re Bernstein, Case No. 1-96-01708 (Memorandum Opinion 10/9/97); see also, In re Bicsak, 207 B.R. 657 (Bankr.W.D.Mo.1997); In re Wilkinson, 168 B.R. 626, (Bankr.N.D.Ohio 1994); In re Smith, 157 B.R. 348 (Bankr.N.D.Ohio 1993); Matter of Strong, 84 B.R. 541, 543 (Bankr.N.D.Ind.1988). In the instant matter, however, Debtor points out, without dispute, that all the debt he seeks to discharge was incurred by him alone" }, { "docid": "19088800", "title": "", "text": "was indicated where the debtor, who was earning net monthly income of $800, could pay her debts if her non-debtor spouse, who was earning net monthly income of $1,134, helped her pay them. \"This Court finds that Debtor has the ability to pay the debt to Fidelity Guaranteed Mortgage in twenty (20) months if her husband contributes to the payments.” 168 B.R. at 628. In In re Strong, 84 B.R. 541 (Bankr.N.D.Ind.1988), the debtor and his wife had an arrangement in which they each paid their own individual debts but shared household expenses equally. Under that arrangement, the debtor’s expenses each month were $1,130.50 while the debtor's wife’s expenses were $775. The debtor had net monthly income of $1,144 while the debtor’s non-debtor spouse had net monthly income of $1,800. The court held that although the debtor lacked the ability to pay his debts without consideration of his wife’s income, the debtor had the ability to pay if his wife's income was considered, which would result in combined monthly disposable income of $1,038. See also In re Bicsak, 207 B.R. 657 (Bankr.W.D.Mo.1997)(chiId support received by the debtor’s live-in mate from her ex-husband for the support of her two children that lived with her and the debtor, had to be added to the debtor’s income for purposes of determining whether or not the debtor satisfied the ability to pay test implicit in 707(b)); In re Duncan, 201 B.R. 889 (Bankr.W.D.Pa.1996)(income of non-debtor spouse had to be included in debtor’s income in assessing under 707(b) whether the debtor was be able to repay at least a portion of his debts, even though the debtor and. his non-debtor spouse were helping to support four adult children and two grandchildren who were living with them); In re Dempton, 182 B.R. 38 (Bankr.W.D.Mo.1995)($700 in child support received by non-debtor spouse for support of two children unrelated to debtor had to be added to the debt- or’s income for purpose of determining whether the debtor could pay his debts for purposes of 707(b)); In re Bacco, 160 B.R. 283 (Bankr.W.D.Pa.1993) ($880 in monthly worker’s compensation received" }, { "docid": "19088799", "title": "", "text": "financial assistance to her elderly mother). . In In re Stewart, 201 B.R. 996 (Bankr.N.D.Okla.1996), the court held that the income of the debtor’s non-debtor spouse had to be added to that of the debtor for purposes of determining whether the debtor had the ability to pay his creditors, even though the individuals, because of their job requirements, maintained two households in two different cities. According to the court, the non-debtor should be required to support the debtor during the period of time that the debtor would be required to pay his debts. \"And he can afford to pay what he owes, to them and to all his other creditors — if not all at once, then certainly over time, within the near and foreseeable future, entirely from his own earnings if need be, but certainly with the help of his current wife, whose own considerable earnings can support them while Stewart pays his just debts.” 201 B.R. at 1007. In In re Wilkinson, 168 B.R. 626 (Bankr.N.D.Ohio 1994), the court held that substantial abuse was indicated where the debtor, who was earning net monthly income of $800, could pay her debts if her non-debtor spouse, who was earning net monthly income of $1,134, helped her pay them. \"This Court finds that Debtor has the ability to pay the debt to Fidelity Guaranteed Mortgage in twenty (20) months if her husband contributes to the payments.” 168 B.R. at 628. In In re Strong, 84 B.R. 541 (Bankr.N.D.Ind.1988), the debtor and his wife had an arrangement in which they each paid their own individual debts but shared household expenses equally. Under that arrangement, the debtor’s expenses each month were $1,130.50 while the debtor's wife’s expenses were $775. The debtor had net monthly income of $1,144 while the debtor’s non-debtor spouse had net monthly income of $1,800. The court held that although the debtor lacked the ability to pay his debts without consideration of his wife’s income, the debtor had the ability to pay if his wife's income was considered, which would result in combined monthly disposable income of $1,038. See also" }, { "docid": "23658744", "title": "", "text": "substantial abuse exists. An example of this tendency is found in the case of In re Bryant, 47 B.R. 21 (Bankr.W.D.N.C.1984). There debtor filed a Chapter 7 petition individually and listed monthly income for both himself and his non-debtor spouse totaling $3,420.00. Bryant, 47 B.R. at 24. In holding that a substantial abuse of Chapter 7 was present, the court considered the total family income and expenses as a matter of course. Bryant, 47 B.R. at 24-26. The importance accorded the income and expenses of a non-petitioning spouse in substantial abuse cases should be similar to the significance given this same factor in considering Chapter 13 plan confirmations and the undue hardship discharge of student loans. In Chapter 13 cases where a married debtor files a single petition, courts commonly consider the debtor’s income from all sources, including a non-debtor spouse, when assessing compliance with the plan confirmation requirements of 11 U.S.C. § 1325. In re Sellers, 33 B.R. 854, 857 (Bankr.D.Col.1983). Indeed, an accurate analysis of Chapter 13’s disposable income test (11 U.S.C. § 1325(b)) is impossible unless the income of a non-debtor spouse is included in the budget. Matter of Saunders, 60 B.R. 187 (Bankr.N.D.Ohio 1986). Similarly, various courts have included the non-filing spouse’s income when examining whether a debtor’s student loan should be discharged, due to undue hardship. In re Bagley, 4 B.R. 248, 249 (Bankr.D.Az.1980). In re Lezer, 21 B.R. 783, 789 (Bankr.N.D.N.Y.1982). In this court’s estimation, the circumstances surrounding a substantial abuse inquiry are analogous to those present in Chapter 13 plan confirmation and undue hardship situations. All three necessitate a determination of how much disposable income, after subtracting reasonable and necessary expenses, will be available to a given debtor. There is no justification for ignoring the impact of a non-petitioning spouse’s income on a debt- or’s financial situation. In re Kern, 40 B.R. 26 (Bankr.S.D.N.Y.1984). Accordingly, we conclude that the income of a non-debtor spouse must be taken into account in order to properly determine whether a case constitutes a substantial abuse of the provisions of Chapter 7. IV The foregoing resolution simplifies the" }, { "docid": "2740109", "title": "", "text": "and Rene’s personal assets, to Lorenz’s personal expenses, education, and well being, compel our conclusion. Section 523(a)(8) requires bankruptcy courts to consider the income of a non-debtor spouse when deciding whether excepting a debtor’s student loans from discharge will impose an “undue hardship” on the debtor. See, e.g., Dolan v. American Student Assistance (In re Dolan), 256 B.R. 230, 236 (Bankr.D.Mass. 2000); Greco v. Sallie Mae Serv. Corp. (In re Greco), 251 B.R. 670, 676-77 (Bankr. E.D.Pa.2000); White v. U.S. Dep’t of Educ. (In re White), 243 B.R. 498, 509 & n. 9 (Bankr.N.D.Ala.1999) (citing a litany of bankruptcy court authority factoring non-debtor spousal income into “undue hardship” determinations). Whether a court should consider the income of a debtor’s domestic “life partner” when making such a determination is less clear. But courts must consider the total picture of a debt- or’s household finances in making a § 523(a)(8) determination. See Greco, 251 B.R. at 679. As the Greco court noted: In a variety of contexts, bankruptcy courts take into account the income of a debtor’s non-filing spouse or co-habitant because it is necessary to evaluate a debtor’s ability to repay her financial obligations, e.g., in ascertaining a debt- or’s disposable income for purposes of 11 U.S.C. § 1325(b)(1)(B), see In re Roth-man, 204 B.R. 143, 159-60 (Bankr. E.D.Pa.1996), and cases cited therein; and in making the determinations of a debtor’s ability to pay a divorce property settlement obligation under 11 U.S.C. § 523(a)(15), see In re Koons, 206 B.R. 768, 773 (Bankr.E.D.Pa.1997), and cases cited therein; and In re Halper, 213 B.R. 279, 284 (Bankr.D.N.J.1997). Id. (emphasis added). “[M]any courts have held that the income of other relatives or of a live-in companion of a debtor is relevant.” Id. For example, in Archibald v. United Student Aid Funds, Inc. (In re Archibald), 280 B.R. 222 (Bankr.S.D.Ind.2002), the bankruptcy court considered the substantial income of the 46-year old debtor’s long term live-in boyfriend in considering household income and expenses for purposes of its undue hardship determination. Id. As another court pointed out, “[i]n including the live-in boyfriend in Archibald, the court" }, { "docid": "6572405", "title": "", "text": "from his budget because they “... were about to separate ...,” with no divorce on file, was insufficient to exclude the wife’s income from the calculation of the debtor’s disposable income); Georgia Railroad Bank & Trust Company v. Kull (In re Kull), 12 B.R. 654, 659 (S.D.Ga.1981), aff'd Kitchen v. Georgia Railroad Bank & Trust Co. (In re Kitchen), 702 F.2d 885 (11th Cir.1983) (court held that in applying good faith analysis, income of the debtor and the debt- or’s spouse must be considered). In a similar vein, bankruptcy courts have considered the non-debtor spouse’s income when determining whether a debtor’s student loan should be discharged due to undue hardship. Connecticut Student Loan Foundation, Inc. v. Bagley (In re Bagley), 4 B.R. 248, 249 (Bankr D.Ariz.1980); Lezer v. New York State Higher Education Services Corp. (In re Lezer), 21 B.R. 783, 789 (Bankr.N.D.N.Y.1982). Additionally, inclusion of household income from all sources is used during the course of a substantial abuse inquiry. 11 U.S.C. § 707(b) (1989); Strong, 84 B.R. at 543; In re Bryant, 47 B.R. 21, 24-26 (Bankr.W.D.N.C.1984). Congress drafted chapter 13 relief to afford the debtor greater flexibility by eliminating the old Chapter XIII requirement of consent to the plan by the unsecured creditors. H.R.Rep. No. 595, 95th Cong., 1st Sess. 117 (1977) reprinted in 1978 U.S.Code Cong. & Admin.News 5787. However, in its quest for greater flexibility to the debtor and limitation of the powers of the creditors, “... Congress did not leave the debtor bridled only by his imagination.” In re Cook, 3 B.R. 480, 485 (Bankr.S.D.W.V.1980). The Code requires a meaningful and realistic budget accompanied by devotion of most of the debtor’s surplus income to repay creditors. Id. This is not to say, however, that the debtor must devote every penny of the disposable income to the plan in order to comply with § 1325(b)(1)(B). A reasonable reserve or contingency fund does not violate that section. In re Fries, 68 B.R. 676, 683 n. 7 (Bankr.E.D.Pa.1986). Such a cushion \"... is necessary in chapter 13 budgeting to guard against life’s unexpectancies. It is not in" }, { "docid": "19088803", "title": "", "text": "Haffner, 198 B.R. 646 (Bankr.D.R.I.1996) (debtor's ability to pay for substantial abuse purposes should be determined by reducing debtor’s income by her share of family living expenses); In re Shands, 63 B.R. 121 (Bankr.E.D.Mich.1985) (same). . The court in In re Bicsak, 207 B.R. 657 (Bankr.W.D.Mo.1997) determined that child support received by the debtor's live-in mate from her ex-husband for the support of her two children that lived with her and the debtor had to be added to the debtor’s income for purposes of determining whether or not the debtor satisfied the ability to pay test implicit in 707(b). See also, In re Dempton, 182 B.R. 38 (Bankr.W.D.Mo.1995) (held that $700 in child support received by a non-debtor spouse for support of two children unrelated to the debtor had to be added to the debtor's income for purpose of determining whether the debtor can pay his debts for purposes of 707(b)). . Certainly this court and others have considered combined incomes in determining adequate protection for purpose of reliefs from stay. .In addition to the authorities referred to in footnotes contained in the previous section, see In re Kornfield, 211 B.R. 468, (Bankr.W.D.N.Y.1997) (substantial abuse indicated where the debtor expressed a desire not to file a Chapter 11 case, thus indicating a lack of honesty); In re Duncan, 201 B.R. 889 (Bankr.W.D.Pa.1996) (substantial abuse indicated where the debtor received a pension pay out of $187,888 in the two year period preceding bankruptcy which.was not available to pay to creditors when bankruptcy was filed); In re Bacco, 160 B.R. 283 (Bankr.W.D.Pa.1993) (substantial abuse indicated where the debtor claimed that several expensive guns that were listed on his bankruptcy petition had been stolen from his car shortly before bankruptcy); In re Traub, 140 B.R. 286 (Bankr.D.N.M.1992) (substantial abuse indicated where one of the debtors transferred two cars to his son immediately prior to bankruptcy). . This explanation of how 707(b) was meant to be applied has been referred to by the United States Courts of Appeal for both the Eighth and Ninth Circuits as \"the best available evidence of Congress’ intent in" }, { "docid": "8400364", "title": "", "text": "735 (Bankr.E.D.Pa.1996) (citations omitted); see also In re Kern, 40 B.R. 26, 28-29 (Bankr.S.D.N.Y.1984). “Consideration of the non-debtor spouse’s income is seen as necessary because a portion of that spouse’s income is likely to be applied to the basic needs of the debtor, potentially increasing the share of the debtor’s own income that is not reasonably necessary for support.” See Carter, 205 B.R. at 736. The nondebt- or spouse’s income is part of the § 1325 analysis because it is a “resource” the consideration of which “is necessary to an accurate assessment of the debtor’s budget.” Id. at n. 3. “This view recognizes the reality that married couples live as a unit, pooling their income and expenses.” Id. at 736. Unless the parties to a marriage actually maintain separate finances historically or by an agreement between them, usually a “nonfiling spouse’s income is available to defray the debtor’s reasonably necessary expenses, thus freeing a larger portion of the debtor’s separate income for satisfaction of unsecured claims.” See In re Soper, 152 B.R. 985, 988 (Bankr.D.Kan.1993). The Official Bankruptcy Forms also appear to contemplate the financial unity of marriage by requiring a married debtor in a Chapter 13 case to report the income and expenses of the debtor and the nonfil-ing spouse in Schedules I and J. See Saunders, 60 B.R. at 187; Carter, 205 B.R. at 736; Hanlin, 211 B.R. at 148; see also 2 K. Lundin, Chapter 13 Bankruptcy § 5.35 at 5-96-5-97. (2d ed.1997). One court that has concluded that the income and expenses “of the non-debtor spouse must be included in the debtor’s Chapter 13 Statement” agreed that “an accurate analysis” of disposable income under § 1325 “is impossible unless the income and expenses of the non-debtor spouse are included in the budget.” See In re Belt, 106 B.R. 553, 563 (Bankr.N.D.Ind.1989), citing In re Strong, 84 B.R. 541, 543 (Bankr.N.D.Ind.1988). The same court noted that in certain dischargeability proceedings, particularly undue hardship discharges of student loans, and in substantial abuse inquiries under § 707(b), courts have considered a nondebtor spouse’s income necessary information to make an" }, { "docid": "18771573", "title": "", "text": "U.S.C. § 707(b) Dismissal. (b) After notice and hearing, the court, on its own motion or on a motion by the United States trustee, but not at the request or suggestion of any party in interest, may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts if it finds that granting of relief would be a substantial abuse of the provisions of this chapter. There shall be a presumption in favor of granting the relief requested by the debtor. DISCUSSION This case presents the primary issue of whether granting relief to this debtor would create a substantial abuse of the provisions of Chapter 7, thus requiring dismissal pursuant to 11 U.S.C. § 707(b). However, in order to resolve this issue another issue must be addressed first. This secondary issue is whether the Court should consider the income of a nondebtor spouse when making its inquiry and determination. It has been held that the income of a nondebtor spouse must be taken into consideration in order to determine whether a case constitutes a substantial abuse under the provisions of Chapter 7. See Matter of Strong, 84 B.R. 541 (Bankr.N.D.Ind.1988). In Strong, at page 543, the court compared the circumstances surrounding a substantial abuse inquiry to those of a Chapter 13 plan confirmation and undue hardship situations. The court concluded that in all three, the income of a nondebtor spouse has a bearing on the debtor’s financial situation. In In re Bryant, 47 B.R. 21 (Bankr.W.D.N.C.1984), the court considered the total income and expenses of both the debtor and the nondebtor spouse in determining that a substantial abuse of Chapter 7 was present. The resolution of the issue of substantial abuse, for purposes of this case, is then primarily focused on whether the Debtor’s income considering all of the circumstances would allow her to repay a substantial portion of her unsecured debt under a Chapter 13 plan. See In re Renner, 70 B.R. 27, 29 (Bankr.D.N.D.1987); In re Hudson, 56 B.R. 415, 419 (Bankr.N.D. Ohio 1985); In re Bell, 56 B.R. 637, 641 (Bankr.E.D.Mich.1986)." }, { "docid": "19088802", "title": "", "text": "by debtor’s unemployed non-debtor spouse had to be considered in making a 707(b) determination regarding the debtor); In re Smith, 157 B.R. 348 (Bankr.N.D.Ohio 1993) (substantial abuse indicated where the debtor could pay her debts if her spouse’s net monthly income of $2,900 was taken into consideration along with her net monthly income of $854); In re Gyurci, 95 B.R. 639 (Bankr.D.Minn.1989) (substantial abuse indicated where the debtor and his wife had substantial income); In re Bryant, 47 B.R. 21 (Bankr.W.D.N.C.1984) (net monthly income of non-debtor spouse had to be added to that of the debtor for purposes of determining whether or not the debtor was be able to repay his debts for purposes of 707(b)). . See In re Berndt, 127 B.R. 222 (Bankr.D.N.D.1991)(debtor's ability to pay for substantial abuse purposes should be determined not by holding income of non-debtor spouse liable for the debtor’s debts, but by determining what degree of disposable income the debtor has by virtue of the fact that he and the non-debtor spouse share joint living expenses); In re Haffner, 198 B.R. 646 (Bankr.D.R.I.1996) (debtor's ability to pay for substantial abuse purposes should be determined by reducing debtor’s income by her share of family living expenses); In re Shands, 63 B.R. 121 (Bankr.E.D.Mich.1985) (same). . The court in In re Bicsak, 207 B.R. 657 (Bankr.W.D.Mo.1997) determined that child support received by the debtor's live-in mate from her ex-husband for the support of her two children that lived with her and the debtor had to be added to the debtor’s income for purposes of determining whether or not the debtor satisfied the ability to pay test implicit in 707(b). See also, In re Dempton, 182 B.R. 38 (Bankr.W.D.Mo.1995) (held that $700 in child support received by a non-debtor spouse for support of two children unrelated to the debtor had to be added to the debtor's income for purpose of determining whether the debtor can pay his debts for purposes of 707(b)). . Certainly this court and others have considered combined incomes in determining adequate protection for purpose of reliefs from stay. .In addition to the" }, { "docid": "6572404", "title": "", "text": "No statutory authority requires the bankruptcy court to consider the income of a non-debtor spouse in computing disposable income, but courts have held that an accurate application of chapter 13’s disposable income test (11 U.S.C. § 1328(b)) is not possible without including in the debtor’s budget income from all sources including a non-debtor spouse. In re Strong, 84 B.R. 541, 543 (Bankr.N.D.Ind.1988); In re Saunders, 60 B.R. 187, 188 (Bankr.N.D.Ohio 1986); see also In re Kern, 40 B.R. 26, 28-29 (Bankr.S.D.N.Y.1984) (debtor proposed to pay all expenses for himself and his non-debtor wife even though she could bear her share and he supported his budget with the assertion that his wife would divorce him if she were asked to contribute to her own support; held, creditor’s objection sustained because to confirm the plan excluding all of the wife’s income would force the debtor’s creditors to subsidize part of the wife’s living expenses and the Code contemplated no such result); In re Sellers, 33 B.R. 854, 857 (Bankr.D.Colo.1983) (debtor's attempts to exclude the non-debtor wife’s income from his budget because they “... were about to separate ...,” with no divorce on file, was insufficient to exclude the wife’s income from the calculation of the debtor’s disposable income); Georgia Railroad Bank & Trust Company v. Kull (In re Kull), 12 B.R. 654, 659 (S.D.Ga.1981), aff'd Kitchen v. Georgia Railroad Bank & Trust Co. (In re Kitchen), 702 F.2d 885 (11th Cir.1983) (court held that in applying good faith analysis, income of the debtor and the debt- or’s spouse must be considered). In a similar vein, bankruptcy courts have considered the non-debtor spouse’s income when determining whether a debtor’s student loan should be discharged due to undue hardship. Connecticut Student Loan Foundation, Inc. v. Bagley (In re Bagley), 4 B.R. 248, 249 (Bankr D.Ariz.1980); Lezer v. New York State Higher Education Services Corp. (In re Lezer), 21 B.R. 783, 789 (Bankr.N.D.N.Y.1982). Additionally, inclusion of household income from all sources is used during the course of a substantial abuse inquiry. 11 U.S.C. § 707(b) (1989); Strong, 84 B.R. at 543; In re Bryant, 47" }, { "docid": "8400365", "title": "", "text": "The Official Bankruptcy Forms also appear to contemplate the financial unity of marriage by requiring a married debtor in a Chapter 13 case to report the income and expenses of the debtor and the nonfil-ing spouse in Schedules I and J. See Saunders, 60 B.R. at 187; Carter, 205 B.R. at 736; Hanlin, 211 B.R. at 148; see also 2 K. Lundin, Chapter 13 Bankruptcy § 5.35 at 5-96-5-97. (2d ed.1997). One court that has concluded that the income and expenses “of the non-debtor spouse must be included in the debtor’s Chapter 13 Statement” agreed that “an accurate analysis” of disposable income under § 1325 “is impossible unless the income and expenses of the non-debtor spouse are included in the budget.” See In re Belt, 106 B.R. 553, 563 (Bankr.N.D.Ind.1989), citing In re Strong, 84 B.R. 541, 543 (Bankr.N.D.Ind.1988). The same court noted that in certain dischargeability proceedings, particularly undue hardship discharges of student loans, and in substantial abuse inquiries under § 707(b), courts have considered a nondebtor spouse’s income necessary information to make an accurate determination. Id. at 562 (citations omitted). The Court agrees that in order to make an accurate determination of the debtor’s disposable income, all of the nondebtor spouse’s income and expenses must be disclosed and must be included in the calculation. Mrs. Bottelberghe’s and the debtor’s testimony suggests that Mrs. Bottelberghe’s undisclosed additional income and expenses are of equal and modest amounts, such that consideration of the same would be in effect a wash and of no moment. However, the Court and only the Court must determine the reasonableness of all of the debtor’s necessary household expenses and whether the debtor’s budget therefore reflects his “best efforts” under § 1325(b)(1)(B). Neither the debtor nor the nondebtor spouse may “cherry pick the family expense budget and have luxury” or other unreasonable expenses “paid for through allocation to the non-debtor spouse so that the net effect is to maintain a luxurious lifestyle but only pay a small dividend to unsecured creditors.” See McNichols, 249 B.R. at 170. Necessity And Reasonableness Of Scheduled Expenses. The creditors’ objections to" }, { "docid": "4605688", "title": "", "text": "her income and assets be considered in the computation of the basic needs of debtor and his dependents. Although no reported decision of which I am aware addresses the treatment of income and assets of a non-debtor spouse under § 522(d)(10)(E), the income of a non-debtor spouse has been considered along with the debtor spouse’s income in closely analogous circumstances under the Bankruptcy Code involving subsistence calculations. Perhaps most significantly, for purposes of the confirmation of a Chapter 13 plan under 11 U.S.C. § 1325(b)(1), compliance with the minimum requirements for funding the plan mandates inclusion of a non-debtor spouse’s income, as well as expenses, when determining the debtor spouse’s “disposable income.” In re Belt, 106 B.R. 553, 563 (Bankr.N.D.Ind.1989); see In re Rose, 101 B.R. 934, 943 (Bankr.S.D.Ohio 1989); see also In re Saunders, 60 B.R. 187, 188 (Bankr.N.D.Ohio 1986). Furthermore, income of the non-debtor spouse must be considered when analyzing under 11 U.S.C. § 707(b) whether dismissal of a case filed by a debtor spouse whose debts are primarily consumer-related would be a “substantial abuse” of Chapter 7. In re Strong, 84 B.R. 541, 543 (Bankr.N.D.Ind.1988); see In re Bryant, 47 B.R. 21, 24-26 (Bankr.W.D.N.C.1984). Moreover, the non-debtor spouse’s income is factored in when determining whether to discharge a debtor spouse’s student loan due to “undue hardship” under 11 U.S.C. § 523(a)(8)(B). See Lezer v. New York State Higher Educ. Serv. Cory. (In re Lezer), 21 B.R. 783, 789 (Bankr.N.D.N.Y.1982); Bagley v. Connecticut Student Loan Found. (In re Bagley), 4 B.R. 248, 249 (Bankr.D.Ariz.1980). There is no justification for disregarding the impact of a non-debtor spouse’s income and assets on a debtor’s financial situation. In re Strong, supra, 84 B.R. at 543. Consideration of the non-debtor spouse’s income and assets in the basic needs analysis is a necessary counterbalance to the potential for inequity created by the Bankruptcy Code fiction that a non-debtor spouse is a dependent of the debtor spouse regardless of actual dependency. Failure to take into account the non-debtor spouse’s income and assets along with that spouse’s expenses would effectively place a burden upon debtor’s" }, { "docid": "19088801", "title": "", "text": "In re Bicsak, 207 B.R. 657 (Bankr.W.D.Mo.1997)(chiId support received by the debtor’s live-in mate from her ex-husband for the support of her two children that lived with her and the debtor, had to be added to the debtor’s income for purposes of determining whether or not the debtor satisfied the ability to pay test implicit in 707(b)); In re Duncan, 201 B.R. 889 (Bankr.W.D.Pa.1996)(income of non-debtor spouse had to be included in debtor’s income in assessing under 707(b) whether the debtor was be able to repay at least a portion of his debts, even though the debtor and. his non-debtor spouse were helping to support four adult children and two grandchildren who were living with them); In re Dempton, 182 B.R. 38 (Bankr.W.D.Mo.1995)($700 in child support received by non-debtor spouse for support of two children unrelated to debtor had to be added to the debt- or’s income for purpose of determining whether the debtor could pay his debts for purposes of 707(b)); In re Bacco, 160 B.R. 283 (Bankr.W.D.Pa.1993) ($880 in monthly worker’s compensation received by debtor’s unemployed non-debtor spouse had to be considered in making a 707(b) determination regarding the debtor); In re Smith, 157 B.R. 348 (Bankr.N.D.Ohio 1993) (substantial abuse indicated where the debtor could pay her debts if her spouse’s net monthly income of $2,900 was taken into consideration along with her net monthly income of $854); In re Gyurci, 95 B.R. 639 (Bankr.D.Minn.1989) (substantial abuse indicated where the debtor and his wife had substantial income); In re Bryant, 47 B.R. 21 (Bankr.W.D.N.C.1984) (net monthly income of non-debtor spouse had to be added to that of the debtor for purposes of determining whether or not the debtor was be able to repay his debts for purposes of 707(b)). . See In re Berndt, 127 B.R. 222 (Bankr.D.N.D.1991)(debtor's ability to pay for substantial abuse purposes should be determined not by holding income of non-debtor spouse liable for the debtor’s debts, but by determining what degree of disposable income the debtor has by virtue of the fact that he and the non-debtor spouse share joint living expenses); In re" }, { "docid": "23658743", "title": "", "text": "his expenses by $13.50, leaving only a negligible amount of disposable income available for payment of his other debts. If, however, we also consider his wife’s monthly income and her expenses, the result is a combined income of $2,944.00 against total expenses of $1,905.50. This translates into excess monthly income of $1,038.50, giving debtor the ability to repay his unsecured debt of $11,247.30. This case presents the issue of whether granting relief to this debtor would create a substantial abuse of the provisions of Chapter 7, thus, requiring dismissal pursuant to 11 U.S.C. § 707(b). To fully and properly resolve this issue, however, another important question must be answered first. That question is whether the court should consider the income of a non-debtor spouse when making its inquiry and determination. Ill This court believes that it must consider the income of both debtor and a non-petitioning spouse during the course of a § 707(b) substantial abuse inquiry. Bankruptcy courts in other jurisdictions have done so, without explanation, in making their own inquiries as to whether substantial abuse exists. An example of this tendency is found in the case of In re Bryant, 47 B.R. 21 (Bankr.W.D.N.C.1984). There debtor filed a Chapter 7 petition individually and listed monthly income for both himself and his non-debtor spouse totaling $3,420.00. Bryant, 47 B.R. at 24. In holding that a substantial abuse of Chapter 7 was present, the court considered the total family income and expenses as a matter of course. Bryant, 47 B.R. at 24-26. The importance accorded the income and expenses of a non-petitioning spouse in substantial abuse cases should be similar to the significance given this same factor in considering Chapter 13 plan confirmations and the undue hardship discharge of student loans. In Chapter 13 cases where a married debtor files a single petition, courts commonly consider the debtor’s income from all sources, including a non-debtor spouse, when assessing compliance with the plan confirmation requirements of 11 U.S.C. § 1325. In re Sellers, 33 B.R. 854, 857 (Bankr.D.Col.1983). Indeed, an accurate analysis of Chapter 13’s disposable income test (11 U.S.C. §" } ]

[ { "docid": "23670385", "title": "", "text": "them used the scales to make shipments for War-man’s “mail-order vitamin business.” (JA 603-04.) B. Procedural history On August 27, 2004, the jury returned a general verdict finding Warman and Deitz guilty of the narcotics-conspiracy count but acquitting Heckman on all charges. The jury also returned a special verdict attributing more than 500 grams but less than 5 kilograms of cocaine to Warman. Warman was sentenced to a term of 97 months’ imprisonment and four years’ supervised release. II. ANALYSIS A. Sufficient evidence supports War-man’s conviction for the narcotics conspiracy Warman challenges the sufficiency of the evidence supporting his conviction for conspiracy to sell narcotics. The relevant question on appeal 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. Martinez, 430 F.3d 317, 330 (6th Cir.2005) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “In making this determination, however, we may not reweigh the evidence, reevaluate the credibility of witnesses, or substitute our judgment for that of the jury.” Id. To obtain a conviction for conspiracy under 21 U.S.C. § 846, the government must prove: (1) an agreement to violate drug laws; (2) knowledge of and intent to join the conspiracy; and (3) participation in the conspiracy. Martinez, 430 F.3d at 330-31. “[P]roof of a formal agreement is not necessary; ‘a tacit or material understanding among the parties’ will suffice.” Id. (citing United States v. Avery, 128 F.3d 966, 970-71 (6th Cir.1997)) (quoting United States v. Pearce, 912 F.2d 159, 161 (6th Cir.1990)). “The existence of a conspiracy ‘may be inferred from circumstantial evidence that can reasonably be interpreted as participation in the common plan.’ ” Id. (quoting Avery, 128 F.3d at 971). Once a conspiracy is proven beyond a reasonable doubt, however, a defendant’s connection to the conspiracy “need only be slight,” and a defendant’s knowledge of and participation in a conspiracy “may be inferred from his conduct and established by circumstantial evidence.” Id. (quoting United" } ]

[ { "docid": "20671470", "title": "", "text": "v. Cook, 722 F.3d 477, 481 (2d Cir.2013) (establishing plain error review applies to appeals challenging portions of a plea agreement not objected to at the time the plea is entered). We also hold that the district court did not abuse its discretion when it denied Tella-do’s motion to amend his petition to plead an ineffective assistance of counsel claim. For the reasons that follow, we affirm the judgment of the district court. Background A federal grand jury indicted Tellado as one of a number of defendants involved in a drug conspiracy, in violation of 21 U.S.C. § 846, charging him with conspiracy “to possess with intent to distribute, and to distribute controlled substances, namely mixtures and substances containing a detectable amount of cocaine and cocaine base, Schedule II controlled substances, and heroin, a Schedule I controlled substance, contrary to the provisions of Title 21, United States Code, Section 841(a)(1).” United States v. Tellado, 3:06-CR-00269 (MRK), Indictment 2, Oct. 4, 2006, ECF No. I. Thereafter, Tellado entered into a plea agreement by which he admitted (1) that a conspiracy existed, (2) that he knowingly and willingly participated in it, and (3) that the amount of cocaine subject of the conspiracy was 500 grams or more. Relevant to his present appeal, the plea agreement included a section titled “Waiver of Right to Appeal or Collaterally Attack Sentence[.]” United States v. Tellado, 3:06-CR-00269 (MRK), Plea Agreement 4, May 4, 2007, EOF No. 427. The waiver provided: The defendant acknowledges that under certain circumstances he is entitled to appeal his conviction and sentence. 18 U.S.C. § 3742. It is specifically agreed that the defendant will not appeal or collaterally attack in any proceeding, including a motion under 28 U.S.C. § 2255 and/or §[]2241, the conviction or sentence of imprisonment imposed by the Court if that sentence does not exceed 188 months even if the Court reaches a sentencing range permitting such a sentence by a Guideline analysis different from that specified above or otherwise contemplated by the parties. Id. at 4. In the plea agreement Tellado also consented to be designated a career" }, { "docid": "23686485", "title": "", "text": "Dale, 178 F.3d at 431 (emphasis added). Under those circumstances, the general guilty verdict told us only that the jurors had reached a unanimous agreement on this issue, but did not disclose the specific ground — i.e., crack, marijuana, or both— upon which the jurors had agreed. Thus, it would have been improper to impose a sentence based on a conspiracy to distribute crack, when it was possible that the jury had found a conspiracy to distribute only marijuana, and not crack. In contrast, the jury here was instructed as follows: Intent to Distribute and Distribution of Marijuana and Cocaine Count One charges that the defendants did, knowingly and intentionally, unlawfully combine, conspire, confederate, and agree with each other and other persons to possess with intent to distribute and to distribute marijuana and cocaine, Schedule I and II Controlled Substances, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846.... Title 21 U.S.C. § 841(a)(1) makes it a crime for anyone to knowingly or intentionally possess a controlled substance with intent to distribute it. Marijuana and cocaine are controlled substances within the meaning of the-law. For you to find the defendants guilty of violating 21 U.S.C. § 841(a)(1), you must be convinced that the government has proved beyond a reasonable doubt: (1) That defendants knowingly possessed controlled substances; (2) That the substances were in fact marijuana and cocaine; and (3) That defendants possessed the substances with the intent to distribute them. jji ^ ‡ H* $ Conspiring to Distribute Marijuana and Cocaine Count One also charges that the defendants violated Title 21 U.S.C. § 846, which makes it a crime for anyone to conspire with someone else to commit a violation of certain controlled substances laws of the United States. * ❖ * * * $ For you to find the defendants guilty of violating 21 U.S.C. § 846, you must be convinced that the government has proved beyond a reasonable doubt: (1)That two or more persons, directly or indirectly, reached an agreement to possess with intent to distribute marijuana and cocaine; (2) That defendants knew of the" }, { "docid": "19981407", "title": "", "text": "has two or more prior convictions for a felony drug offense. In turn, 21 U.S.C. § 846 provides that “[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the ... conspiracy.” In his brief, Wheeler does not contest the imposition of the mandatory life sentence under § 841(b)(1)(A), or that he had two qualifying prior felony drug convictions. His sentencing arguments relate instead to Booker, the Sixth Amendment, and reasonableness. Because the district court was bound to impose the mandatory life sentence for the drug conspiracy conviction, any sentencing error would be harmless, as Wheeler cannot receive a sentence lower than the statutory minimum. Cf. United States v. Joiner, 123 Fed.Appx. 681, 683 (6th Cir.2005). V. For the foregoing reasons, we reverse Wheeler’s convictions and sentences for the substantive RICO and RICO conspiracy offenses and affirm Wheeler’s conviction and sentence for the drug conspiracy. . In his brief, Wheeler also incorporated by reference two arguments raised in the brief of his co-defendant John Walker. We find no merit to those arguments for the reasons given in United States v. Walker, No. 04-4478, 2008 WL 2939489, - WL - (6th Cir.2008). . Racketeering Act 17 alleged: From in or about January 1990 through in or about November 1997, in the Middle District of Florida, the Eastern District of Michigan, the Southern District of Indiana, and elsewhere, the defendant, James Lee Wheeler a/k/a Frank Wheeler, did knowingly, intentionally, and willfully combine, conspire, confederate and agree with persons both known and unknown to the grand jury, to possess with intent to distribute and distribute 5 kilograms or more of a mixture or substance containing a detectable amount of cocaine and a quantity of methamphetamine, schedule II controlled substances, contrary to the provisions of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A) and (C), in violation of Title 21, United States Code, Section 846. Count 4 alleged: From in or about 1990 through in or about November" }, { "docid": "17853921", "title": "", "text": "HENLEY, Senior Circuit Judge. Appellants challenge their convictions and sentences associated with an alleged drug distribution conspiracy in Des Moines, Iowa between 1985 and 1989. All appellants were convicted under 21 U.S.C. § 846 for a single conspiracy to distribute heroin, a Schedule I controlled substance, and cocaine and cocaine base, Schedule II controlled substances, in violation of 21 U.S.C. § 841(a)(1). Mary Catherine Luter Ritcher-son (Luter ) was sentenced to 360 months in prison and a $20,000.00 fine. David Henry Ritcherson (Ritcherson) was sentenced to 188 months in prison and five years of supervised release. Thomas Edward Watts (Watts) was sentenced to 160 months in prison but was acquitted of a second count of the indictment for which only he was charged. Codefendant Charles Ray Cofer (Cofer) was acquitted of the conspiracy charge. Appellants raise several alleged points of error. The points challenging the convictions principally focus on the proof of a conspiracy and evidentiary issues. The points challenging sentencing focus on the conversion of certain cash and assets to drug equivalents and increases in criminal history scores due to alleged prior offenses. We affirm all convictions and sentences. FACTS The indictment on which the appellants were charged and convicted states: That on or about the 1st day of January, 1985 and continuously thereafter up to and including the 1st day of January, 1990, in the Southern District of Iowa and elsewhere, DAVID HENRY RITCH-ERSON, MARY CATHERINE LUTER, a/k/a MARY RITCHERSON, THOMAS EDWARD WATTS and CHARLES RAY COFER willfully and knowingly did combine, conspire, confederate and agree together with diverse persons known and unknown to the Grand Jury to commit an offense against the United States, namely to knowingly and intentionally distribute heroin, a Schedule I controlled sub stance, cocaine and cocaine base, a Schedule II controlled substance in violation of Title 21, United States Code, Section 841(a)(1) ... a violation of Title 21, United States Code, Section 846. The government’s theory of the case is that Luter was the center of a drug trafficking conspiracy involving the possession and distribution of heroin and cocaine by several different people" }, { "docid": "6958650", "title": "", "text": "be whatever it might be in this case, alleged cocaine. It could be marijuana or whatever else is charged. . The jury asked: In Counts 1 and 2, it uses the following: \"controlled substance.” In the amounts shown it was the following — “cocaine.” Is the word \"cocaine” in the statement still interchangeable with the words \"controlled substance”? . The Drug Quantity Table in U.S.S.G. § 2D1.1(c)(1) provides for an offense level of 38 for a § 841(a) offense involving 150 kilograms or more of cocaine. . Both parties agree that the applicable standard of review of the particular issue here is de novo. . Section 846 provides that any person \"who attempts or conspires to commit any offense defined in this subchapter [including § 841(a)] shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” 21 U.S.C. § 846. . Section 841(b)(1)(C) provides a maximum penalty of 20 years’ imprisonment for a § 841(a) offense involving any amount of any controlled substance in Schedule I or II, which includes cocaine. Section 841(b)(1)(B) increases the statutory maximum to 40 years’ imprisonment for an offense involving 500 grams or more of cocaine. Section 841(b)(1)(A) increases the statutory maximum to life imprisonment for an offense involving five kilograms or more of cocaine. . Sanders’s reply brief acknowledges as much, stating: \"Sanders does not argue that the district court erred by failing to instruct the jury that the government was required to prove specific intent to possess a particular drug.” . Count Two charges that Sanders and Salvador Marillo: aided and abetted by each other and others known and unknown, to knowingly and intentionally possess with intent to distribute a controlled substance, said act involving at least five (5) kilograms of a mixture and substance containing a detectable amount of cocaine hydrochloride, a Schedule II controlled substance, all in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(l)(A)(ii), and Title 18, United States Code, Section 2. Given the parallel structure of Counts One and Two, we" }, { "docid": "10309510", "title": "", "text": "import into the United States from a place outside the United States, a controlled substance, namely 500 grams or more of a mixture or substance containing, a detectable amount of methamphetamine, a Schedule III Narcotic Drug Controlled Substance; In violation of Title 21, United States Code, Section 952(a).” Count three charged that \"defendants herein, did knowingly and intentionally possess with intent to distribute a controlled substance, namely approximately 460 grams of methamphetamine or a mixture or substance containing a detectable amount of methamphetamine, a Schedule III Narcotic Drug Controlled Substance; In violation of Title 21, United States Code, Section 841(a)(1).” Count four charged that \"defendants herein, did knowingly and intentionally possess with intent to distribute a controlled substance, namely, approximately 470 grams of methamphetamine or a mixture or substance containing a detectable amount of methamphetamine, a Schedule III Narcotic Drug Controlled Substance; In violation of Title 21, United States Code, Section 841(a)(1).” . Macedo is correct that the schedule classification of a drug may be relevant to the maximum statutoiy penalty determination and may create an Apprendi violation if the indictment refers to the drug at issue solely in terms of its schedule classification without referencing the drug type or amount. For example, if the indictment and subsequent verdict form in this case charged Macedo with conspiracy to import/possession/attempted possession \"a schedule III drug,\" then he is correct that the statutory maximum sentence for that crime, under Apprendi, would be 5 years as designated by section 841(b)(1)(D). See United States v. Martin, 287 F.3d 609, 614-15 (7th Cir.2002) (reasoning that where indictment and verdict form stated only drug type, cocaine, without stating drug quantity, under Apprendi defendant’s sentence could not exceed statutory maximum for the smallest amount of cocaine listed in § 841(b)(1)). . To the extent Macedo is arguing that the jury instructions amounted to a de facto amendment of the indictment, his assertion is foreclosed by Field. The designation of methamphetamine as a schedule III drug had no substantive effect on the indictment as it is a fact that \"need not be proven even if alleged, [...] and" }, { "docid": "8853587", "title": "", "text": "F.3d 1073, 1076 (7th Cir.1998) (holding the crime of aiding and abetting requires “the specific intent to aid in the commission of the crime in doing whatever [the defendant] did to facilitate its commission” and therefore, the defendant’s “voluntary intoxication, if sufficient to negate the required intent to aid and abet, would provide [the defendant] with a defense.”); United States v. Sayetsitty, 107 F.3d 1405, 1412 (9th Cir.1997) (holding because aiding and abetting requires an element of specific intent, the court erred by refusing to give a voluntary intoxication instruction). Count 1 charged Mr. Jackson with conspiring “to possess with intent to distribute and [conspiring] to distribute cocaine base (crack), a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1).” All conspiracy crimes are specific intent crimes. See Blair, 54 F.3d at 642. “The specific intent required for the crime of conspiracy is in fact the intent to advance or further the unlawful object of the conspiracy.” Id. (quotation marks and citations’ omitted). Thus, conspiracy to distribute a controlled substance and conspiracy to possess with intent to distribute a controlled substance are specific intent crimes. See United States v. Merriweather, 78 F.3d 1070, 1078 (6th Cir.1996) (holding conspiracy to distribute a controlled substance is a specific intent crime). To find a defendant guilty of conspiracy in violation of 21 U.S.C. §§ 841(a)(1) and 846, the jury must find, beyond a reasonable doubt, (1) an agreement with another person to violate the law, (2) knowledge of the essential objectives of the conspiracy, (3) knowing and voluntary involvement, and (4) interdependence among the alleged conspirators. United States v. Carter, 130 F.3d 1432, 1439 (10th Cir.1997), cert. denied, 523 U.S. 1144, 118 S.Ct. 1856, 140 L.Ed.2d 1104 (1998). “The essence of the crime of conspiracy is an agreement to commit an unlawful act.” United States v. Peveto, 881 F.2d 844, 855 (10th Cir.) (quotation marks and citation omitted), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989). “It is permissible for the jury to infer an agreement constituting a conspiracy from the acts of the" }, { "docid": "23147551", "title": "", "text": "subchapter, it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance_” Section 841 (b)( 1) (A) (iii) states that the penalty for a violation of § 841(a) involving 50 grams or more of cocaine base is \"a term of imprisonment which may not be less than 10 years or more than life.” Section 846 provides that ”[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.\" . The indictment stated as follows: Beginning in or about early, 1987, and continuing until on or about the date of this Indictment [March 7, 1990], in the Northern District of Oklahoma, and elsewhere, defendants DONALD B.W. EVANS, JR., DOMINIC EVANS, a/k/a MITCHELL, DIANA J. BRICE, JAMES E. JOUBERT, ROBERT NORFLEET, JR., BRIAN K. WOODS, PERRY ROBERTS, III, JAMES J. BACKWARD, CHRISTOPHER WYMAN, and ERIC D. RENTIE, did willfully and knowingly combine, conspire, confederate and agree together, and with others both known and unknown to this Grand Jury, to commit offenses against the United States of America, in violation of Title 21, United States Code, Section 846, as follows: (1) To knowingly and intentionally possess with intent to distribute 50 grams or more cocaine-base (crack), a Schedule II narcotic controlled substance, contrary to Title 21, United States Code, Sections 841(a)(1), 84 l(b)( l)(A)(iii). (2) To knowingly and intentionally distribute 50 grams or more cocaine-base (crack), a Schedule II narcotic controlled substance, contrary to Title 21, United States Code, Sections 841(a)(1), 841(b)(l)(A)(iii).... The objects of said conspiracy were to be accomplished and were accomplished as follows: (1) Defendants DONALD B.W. EVANS, JR., DOMINIC EVANS, a/k/a MITCHELL, JAMES J. BACKWARD, BRIAN K. WOODS and other unindicted co-conspirators both known and unknown to the Grand Jury, would and did possess, transport and distribute large amounts of cocaine-base (crack) from California into the Northern District of Oklahoma. (2) Defendants DONALD B.W. EVANS," }, { "docid": "5416471", "title": "", "text": "ORDERED. . The indictment reads as follows: Count 1: From on or about the 5th day of February, 1979, and continuously thereafter up to and including the date of the filing of this indictment [March 1, 1979], in the Southern District of New York, Calixto Agapito, Martha Calderon and Horacio Rueda, the defendants and others to the Grand Jury known and unknown, unlawfully, intentionally and knowingly combined, conspired, confederated and agreed together and with each other to violate Sections 812, 841(a)(1) and 841(b)(1)(A) of Title 21, United States Code. It was part of said conspiracy that the said defendants unlawfully, intentionally and knowingly would distribute and possess with intent to distribute Schedule II narcotic drug controlled substances, to wit, cocaine, the exact amount thereof being to the Grand Jury unknown in violation of Sections 812, 841(a)(1) and 841(b)(1)(A) of Title 21, United States Code. Count 2: On or about the 22nd day of February, 1979, in the Southern District of New York, Horacio Rueda, the defendant, unlawfully, intentionally and knowingly did distribute and possess with intent to distribute a Schedule II narcotic drug controlled substance, to wit, approximately eight kilograms of cocaine. (Title 21, United States Code, Sections 812, 841(a)(1) and 841(b)(1)(A) and Title 18, United States Code, Section 2.) Count 3: On or about the 22nd day of February, 1979, in the Southern District of New York, Horacio Rueda, the defendant, unlawfully, wilfully and knowingly did carry a firearm, to wit, a .22 caliber derringer, during the commission of a felony for which he could be prosecuted in a Court of the United States, to wit, violations of Title 21, United States Code, Sections 812, 841(a)(1) and 841(b)(1)(A) and 846. (18 U.S.C. § 924(c)(2).) Count 4: On or about the 22nd day of February, 1979, in the Southern District of New York, Calixto Agapito, Martha Calderon and Horacio Rueda, the defendants, unlawfully, willfully and knowingly did distribute and possess with intent to distribute a Schedule II narcotic drug controlled substance, to wit, approximately one kilogram of cocaine. (Title 21, United States Code, Sections 812, 841(a)(1) and 841(b)(1)(A) and Title" }, { "docid": "6101419", "title": "", "text": "supra. 21 U.S.C. § 844(a) sets forth the parameters of the crime of “simple possession”: It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner while acting in the course of his professional practice or except as otherwise authorized by this subchapter or subchapter II of this chapter.... 21 U.S.C. § 844(a). Pursuant to 21 U.S.C. §§ 846 and 841(a), it is unlawful for Any person [to knowingly or intentionally] attempt or conspire to [manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense a controlled substance].... 21 U.S.C. §§ 846, 841(a). There is clearly no identity of elements in the two crimes. A violation of 21 U.S.C. § 844(a), simple possession, requires: (1) knowingly or intentionally, (2) possessing, (3) a controlled substance. See United States v. Monger, supra, 185 F.3d at 577. By contrast, to establish a drug conspiracy, the government must prove (1) an agreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy. United States v. Welch, 97 F.3d 142, 148 (6th Cir.1996), cert. denied 519 U.S. 1134, 117 S.Ct. 999, 136 L.Ed.2d 879 (1997), citing United States v. Sanchez, 928 F.2d 1450, 1457 (6th Cir.1991). In United States v. Monger, supra, we held that simple possession is a lesser-included-offense of possession with intent to distribute. However, in the present case, Defendant Colon was not charged with the substantive crime of “possession with intent to distribute cocaine.” Instead, Colon was charged in Count 1 with conspiracy to distribute and possess with intent to distribute more than 500 grams of cocaine. Simple possession has a required element that need not be proven to be convicted of the conspiracy charge. That element is one of “possession.” Colon focuses his argument on the possession aspect of the charge and fails to acknowledge that the charge is not possession with intent to distribute, but instead conspiracy to distribute and possess with intent to distribute, or stated more" }, { "docid": "10905001", "title": "", "text": "Maywood murder investigation in order to show Rudy’s bias in favor of the Government. Furthermore, Mr. Terrell’s post-trial motion amplified the constitutional arguments in support of that issue. The objection was sufficiently preserved. See United States v. Glover, 479 F.3d 511, 517 n. 1 (7th Cir.2007). . This emphasis added. . See United States v. Given, 164 F.3d 389, 392 (7th Cir.1999) (finding no error in a district court’s ruling precluding re-recross-examination about a witness’s unrequited romantic interest in the defendant because the issue was unsubstantiated and had been unpursued by the defense); United States v. Sinclair, 109 F.3d 1527, 1537-38 (10th Cir.1997) (concluding that the defendant's theory of witness bias lacked \"factual support,” was \"highly doubtful,” and, thus, fell within the district court's Rule 403 discretion to limit cross-examination). . Mr. Martin does not join in this argument. See Martin/Bell Appellants' Br. 24 (contending only that Rudy's testimony was necessary to convict Mr. Bell). Even if he had, we would find that the wealth of evidence presented against Mr. Martin renders the Sixth Amendment violation harmless. . See Martin/Bell Appellants’ Br. 24-25 (\"[Ajlthough [Mr. Bell] was a drug dealer he was not a member of Mr. Martin’s organization and never had been in a conspiracy with Mr. Martin’s organization to distribute narcotics.” (emphasis in original)). . Mi'. Terrell's revised proposed instruction 3.08 read as follows: (1) The indictment charges that the defendants were all members of one single conspiracy to commit the crime of knowingly and intentionally to possess with intent to distribute and to distribute controlled substances, namely, in excess of 5 kilograms of mixtures containing cocaine and in excess of 50 grams of mixtures containing cocaine base (in the form of \"crack” cocaine), Schedule II Narcotic Drug Substances; and in excess of 1 kilogram of mixtures containing heroin, and marijuana, Schedule I controlled Substances, in violation of Title 21, United States Code, Section 841(a)(1). (2) The defendant has argued that there were really separate conspiracies, one between Jerome Terrell and Christopher Clark to commit the crime of possession with intent to distribute cocaine and cocaine base and" }, { "docid": "23433369", "title": "", "text": "knowingly, intentionally, and unlawfully combine, conspire, confederate and agree and have tacit understanding with persons, both known and unknown to the Grand Jury, to possess with intent to distribute cocaine base (commonly known as crack cocaine), a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1); All in violation of Title 21, United States Code, Section 846. . We adopt the terminology employed by United States v. Promise, 255 F.3d 150, 152 (4th Cir.2001), in discussing these statutes. Promise defined \"specific threshold drug quantities” as \"those quantities of drugs set forth in 21 U.S.C. § 841(b)(1)(A), (b)(1)(B), a finding of which subjects a defendant to a sentence of ten years to life imprisonment (§ 841(b)(1)(A)) or five to 40 years imprisonment (§ 841(b)(1)(B)).” Promise, 255 F.3d at 152. Promise defined an \"aggravated drug offense” as \"one that involves a specific threshold drug quantity.” Promise, 255 F.3d at 152. . In fact, the only distinction between the cases is that Promise was convicted by a jury and Dinnall was convicted after he pleaded guilty. We find no substance to this distinction. We need look no further than Apprendi itself for an application of the rule of that case to a defendant who has pleaded guilty to the charge in the indictment but was nonetheless sentenced for another crime based on elements not alleged in the indictment against him. Apprendi, 530 U.S. at 470, 120 S.Ct. 2348. Although the general rule is that a guilty plea waives nonjurisdictional error in the indictment, see United States v. Willis, 992 F.2d 489, 490 (4th Cir.1993), the error identified by Promise is not an error in the form of the indictment or in the conviction but a jurisdictional error as to sentencing as imposed by the district court. See Promise, 255 F.3d at 160; United States v. Cotton, 261 F.3d 397, 404-05 (4th Cir.2001). Dinnall was properly indicted for conspiracy to posses an unidentified quantity of cocaine base with the intent to distribute in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(C). The error in this case" }, { "docid": "6958635", "title": "", "text": "(same); United States v. Sheppard, 219 F.3d 766, 768 n. 2, 769 (8th Cir.2000) (same). In Sanders’s case, the district court instructed the jury, in varying iterations, that the defendant “only has to have knowledge that it’s a controlled substance” and “he does not have to have knowledge that it was actually cocaine that was being possessed.” These instructions correctly state the law of our Circuit applying § 841(a) and (b), and the district court did not amend or broaden the indictment by instructing the jury that Sanders did not have to know specifically that he possessed cocaine. See Baker, 432 F.3d at 1233-34. Although knowledge is not required under § 841(b), Sanders argues that his particular indictment narrowly charges only a “subset” of the statutory offenses — conspiracy to possess and possession of cocaine — rather than the generic crimes of conspiracy to possess and possession of a controlled substance. We disagree because the precise language of his indictment charges controlled substance crimes. For example, Count One charges that Sanders: did knowingly combine, conspire, confederate, agree and have a tacit understanding with each other and others known and unknown to the Grand Jury, to commit violations of Title 21, United States Code, Section 841(a)(1), that is, to knowingly and intentionally distribute and possess with intent to distribute a controlled substance, said conspiracy involving at least five (5) kilograms of cocaine hydrochloride, a Schedule II substance, all in violation of Title 21, United States Code, Sections 846, 841(a)(1) and 841(b)(l)(A)(ii). The indictment tracks the statutory language of § 841(a) by charging that Sanders conspired to knowingly and intentionally possess with intent to distribute a “controlled substance.” Count One charges a generic violation of §§ 841(a) and 846 in which Sanders conspired to knowingly and intentionally distribute “a controlled substance.” Count Two similarly charges a generic violation of § 841(a) in which Sanders knowingly possessed with intent to distribute “a controlled substance.” We recognize that each count adds sentencing language to give Apprendi notice that the government also charged that the overall conspiracy “involv[ed] at least five (5) kilograms of cocaine.”" }, { "docid": "10905002", "title": "", "text": "violation harmless. . See Martin/Bell Appellants’ Br. 24-25 (\"[Ajlthough [Mr. Bell] was a drug dealer he was not a member of Mr. Martin’s organization and never had been in a conspiracy with Mr. Martin’s organization to distribute narcotics.” (emphasis in original)). . Mi'. Terrell's revised proposed instruction 3.08 read as follows: (1) The indictment charges that the defendants were all members of one single conspiracy to commit the crime of knowingly and intentionally to possess with intent to distribute and to distribute controlled substances, namely, in excess of 5 kilograms of mixtures containing cocaine and in excess of 50 grams of mixtures containing cocaine base (in the form of \"crack” cocaine), Schedule II Narcotic Drug Substances; and in excess of 1 kilogram of mixtures containing heroin, and marijuana, Schedule I controlled Substances, in violation of Title 21, United States Code, Section 841(a)(1). (2) The defendant has argued that there were really separate conspiracies, one between Jerome Terrell and Christopher Clark to commit the crime of possession with intent to distribute cocaine and cocaine base and another one between the Mafia Insane Vice Lords to commit the crime of Possession with intent to distribute cocaine, cocaine base, heroin and marijuana. (3) To convict any one of the defendant [sic] of the conspiracy charge, the government must convince you beyond a reasonable doubt that the defendant was a member of the conspiracy charged in the indictment. If the government fails to prove this, then you must find that defendant not guilty of the conspiracy charge, even if you find that he was a member of some other conspiracy. Proof that a defendant was a member of some other conspiracy is not enough to convict. (4) But proof that defendant was a member of some other conspiracy would not prevent you from returning a guilty verdict, if the government also proved that he was a member of the conspiracy charged in the indictment. See R.1875 at 2-3. Mr. Terrell's proposed instruction 3.09 was materially identical to the Sixth Circuit pattern jury instruction 3.09. Id. at 3-4. . Determining whether multiple conspiracies existed is" }, { "docid": "10824059", "title": "", "text": "the search and seizure of various items from Gal-lashaw’s residence).) . (Trial Tr. vol. 24 at 36-42 (Bullard's testimony about the raid at Gallashaw's residence).) . (Trial Tr. vol. 28 at 59 (wiretap 4473).) . 21 U.S.C. § 841(b)(l)(C)-(D) provides for a maximum sentence of five years for an unspecified amount of marijuana and a maximum sentence of twenty years for an unspecified amount of cocaine, absent enhancements for prior drug felony convictions. . Count 1 of the superseding indictment charging the six appellants with conspiracy alleged, in relevant part: From at least as early as July 1994, the exact date being unknown to the Grand Jury, and continuing thereafter until or about January 5, 1999, in Miami, Miami-Dade County in the Southern District of Florida, and elsewhere the defendants ... did knowingly and intentionally combine, conspire, confederate and agree with each other, and with persons known and unknown to the Grand Jury, to possess with intent to distribute a Schedule II controlled substance and a Schedule I controlled substance, that is, mixtures and substances containing detectable amounts of cocaine and marijuana; in violation of Title 21, United States Code, Section 841. (Superseding Indictment at 2-3.) . With respect to the sentences of Allen, Major, and Godfrey, the Government filed enhancement notices for each of these defendants (Doc. Nos. 430, 431, 432) on September 3, 1999, four days before the trial began. . Count 4 of the superseding indictment alleged: On or about September 10, 1998, at Miami, Miami-Dade County, in the Southern District of Florida, and elsewhere, the defendants, Antonio Allen, a/k/a “Tony Wright,” a/k/a \"T. Wright,” and Latravis Gallashaw, a/k/a \"Trav,” did knowingly and intentionally possess with intent to distribute a Schedule II controlled substance, that is, a mixture and substance containing a detectable amount of cocaine, in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2. (Superseding Indictment at 12 (emphasis added).) Count 10 of the superseding indictment alleged: On or about October 24, 1998, at Miami, Miami-Dade County, in the Southern District of Florida, and elsewhere, the defendants," }, { "docid": "18032418", "title": "", "text": "submitted to the jury. We must therefore examine the indictment and jury instructions to ascertain what findings can be ascribed to the jury. See, e.g., Soto-Beníquez, 350 F.3d at 160; Nelson-Rodriguez, 319 F.3d at 45. The superseding indictment charged in pertinent part that the appellant and his coconspirators did, knowingly and intentionally, combine, conspire, and agree with each other and with divers other persons to the grand jury known and unknown, to commit an offense against the United States, to wit, to knowingly and intentionally distribute multi-kilogram quantities of controlled substances, that is to say, in excess of one (1) kilogram of heroin, a Schedule I Narcotic Drug Controlled Substance, in excess of five (5) kilograms of cocaine, a Schedule II Narcotic Drug Controlled Substance, in excess of fifty (50) grams of cocaine base, a Schedule II Narcotic Drug Controlled Substance, as prohibited by Title 21, United States Code, Section 841(a)(1). By specifying drug types and quantities, the indictment laid the appropriate groundwork; it put the appellant on notice that he could face a life sentence. Without more, however, the language of the indictment does not evince that the jury, by the naked act of returning a guilty verdict, actually found the appellant responsible for the described drug types and quantities. The jury instructions must supply a proper linkage. See United States v. Westmoreland, 240 F.3d 618, 633 (7th Cir.2001) (“Apprendi requires drug quantity — ■ when it subjects a defendant to an enhanced sentence — to be both charged in the indictment and submitted to the jury.”). The jury instructions in this case did not supply that linkage. They did not advise the jury that it must find the defendant guilty beyond a reasonable doubt of conspiracy to distribute, at a minimum, the drug types and quantities described in the indictment. Indeed, the court only mentioned drug types and quantities once during its charge: Let’s say something about the underlying crime, which is possession of narcotics with intent to distribute. In the indictment the charge regarding controlled substances is that this was a conspiracy to possess with intent to" }, { "docid": "6958636", "title": "", "text": "confederate, agree and have a tacit understanding with each other and others known and unknown to the Grand Jury, to commit violations of Title 21, United States Code, Section 841(a)(1), that is, to knowingly and intentionally distribute and possess with intent to distribute a controlled substance, said conspiracy involving at least five (5) kilograms of cocaine hydrochloride, a Schedule II substance, all in violation of Title 21, United States Code, Sections 846, 841(a)(1) and 841(b)(l)(A)(ii). The indictment tracks the statutory language of § 841(a) by charging that Sanders conspired to knowingly and intentionally possess with intent to distribute a “controlled substance.” Count One charges a generic violation of §§ 841(a) and 846 in which Sanders conspired to knowingly and intentionally distribute “a controlled substance.” Count Two similarly charges a generic violation of § 841(a) in which Sanders knowingly possessed with intent to distribute “a controlled substance.” We recognize that each count adds sentencing language to give Apprendi notice that the government also charged that the overall conspiracy “involv[ed] at least five (5) kilograms of cocaine.” This language, however, is not required for conviction under § 841(a) but is required to set the statutory maximum sentence under § 841(b). Because the indictment charges generic, “controlled substance” violations of §§ 841(a) and 846, the district court correctly instructed the jury that Sanders had to know only that he was conspiring to distribute, and possess with intent to distribute, any controlled substance. Contrary to Sanders’s contention, our decision in United States v. Narog, 372 F.3d 1243 (11th Cir.2004), does not help him. In Narog, the defendants were charged with conspiring to possess and distribute pseudoephedrine “knowing and having reasonable cause to believe that the listed chemical [pseudoephedrine] would be used to manufacture a controlled substance, that is, methamphetamine.” Id. at 1246 (emphasis added). The government prosecuted the Narog case only as a methamphetamine-production case. There was no evidence that the pseudoephedrine pills would be used to manufacture a controlled substance other than methamphetamine. Id. at 1247. Therefore, the jury should have been instructed that the term “controlled substance” “was synonymous with methamphetamine.” Id." }, { "docid": "51490", "title": "", "text": "allegations] by reference____” Count 3, ¶ 1. Count Three charges that from on or about 21 October 1992, through on or about 11 August 1994, in the District of New Jersey, and elsewhere, Vittorio, Gaito and McManus knowingly and intentionally did combine, conspire, and agree with each other, and with others, to distribute, and to possess with intent to distribute, more than 5 kilograms of heroin, a Schedule I narcotic drug controlled substance, and more than 5 kilograms of cocaine, a Schedule II narcotic drug controlled substance, contrary to Title 21, United States Code, Section 841(a)(1). In violation of Title 21, United States Code, Section 846. Count 3, ¶2. F. Count Four: Distribution of Heroin Count Four re-alleges the allegations “contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporate^] [those allegations] by reference____” Count 4, ¶ 1. Count Four charges that on or about 22 November 1993, in the District of New Jersey, and elsewhere, Vittorio, Gaito and McManus “knowingly and intentionally did possess, with intent to distribute, one ounce of heroin, a Schedule I narcotic drug controlled substance” in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count 4, ¶2. G. Count Five: Conspiracy to Import Narcotics Count Five re-alleges the allegations “contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporate^] [those allegations] by reference____” Count 5, ¶ 1. Count Five charges that on or about 21 October 1992, through on or about 11 August 1994, in the District of New Jersey, and elsewhere, Giampa, Vittorio, McManus, Poreo and Capra knowingly and intentionally did combine, conspire, and agree with each other, and with others, to import more than 5 kilograms of heroin, a Schedule I narcotic drug controlled substance, and more than 5 kilograms of cocaine, a Schedule II narcotic drug controlled substance, from a place outside the United States, contrary to Title 21, United States Code, Section 952. In violation of Title 21, United States Code, Section 963. Count 5, ¶2. H. Count Six: Conspiracy to Deal in Firearms Count Six" }, { "docid": "51489", "title": "", "text": "affected, interstate commerce, did knowingly and wilfully conduct and participate, directly and indirectly, in the conduct of the affairs of the Lucchese Crime Family through a pattern of racketeering activity, as defined in Title 18, United States Code, Section 1961(1) and (5)____ Count 2, ¶ 2. Count Two alleges Giampa, Vittorio and McManus “committed and aided and abetted, counseled, commanded, induced, procured and willfully caused the commission of the Racketeering [a]cts set forth below.” Id., ¶ 3. Count Two lists five racketeering acts, which are described in Count One, allegedly committed by Giampa, Vittorio and McManus in violation of 18 U.S.C. § 1962(c): (1) a conspiracy to import and distribute heroin and cocaine, (2) the distribution of heroin, (3) a scheme to steal and transport stolen property, (4) a scheme to establish import/export company through extortionate loan, and (5) a scheme to conceal evidence. Id., ¶3. E. Count Three: Conspiracy to Distribute Narcotics Count Three re-alleges the allegations “contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporate[s] [those allegations] by reference____” Count 3, ¶ 1. Count Three charges that from on or about 21 October 1992, through on or about 11 August 1994, in the District of New Jersey, and elsewhere, Vittorio, Gaito and McManus knowingly and intentionally did combine, conspire, and agree with each other, and with others, to distribute, and to possess with intent to distribute, more than 5 kilograms of heroin, a Schedule I narcotic drug controlled substance, and more than 5 kilograms of cocaine, a Schedule II narcotic drug controlled substance, contrary to Title 21, United States Code, Section 841(a)(1). In violation of Title 21, United States Code, Section 846. Count 3, ¶2. F. Count Four: Distribution of Heroin Count Four re-alleges the allegations “contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporate^] [those allegations] by reference____” Count 4, ¶ 1. Count Four charges that on or about 22 November 1993, in the District of New Jersey, and elsewhere, Vittorio, Gaito and McManus “knowingly and intentionally did possess, with intent to distribute," }, { "docid": "7455771", "title": "", "text": "after hearing the witnesses’ testimony and observing their demeanor, the district court found the consent by Mrs. Alvarez had been knowing and voluntary. The Alvarez consent is not nullified by the fact she may have been upset or had been told a warrant would be obtained even were she to deny consent. III. Conspiracy of Colonia and Alvarez The indictment of Colonia and Alvarez charged that they “knowingly and intentionally did possess with intent to distribute approximately 1059 net grams of a mixture containing Cocaine, a Schedule II Narcotic Drug Controlled Substance. In violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2.” The district court’s opinion of September 4, 1987, opens: The United States charged the defendants William Colonia and Fanny Alvarez in a two count indictment. Count I of the indictment charges the defendants with conspiracy to possess cocaine with intent to distribute in violation of 21 U.S. C. § 846. Count II charges the defendants with possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Likewise, the district court’s conclusions of law open: “Count I charges the defendants with conspiracy to distribute cocaine and to possess cocaine with an intent to distribute it.” But that section of the conclusions of law, headed Conspiracy to Possess and Distribute Cocaine, concluded: The evidence against defendants in the instant case goes well beyond being slight as to their participation in the conspiracy charges within Count I of the indictment and the Court finds it is sufficient to prove that Colonia and Alvarez are GUILTY of having participated in a conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846. Colonia seizes upon this discrepancy in language to assert that he was denied due process in his conviction of conspiracy to distribute. There is only one conspiracy charged in Count I, that being conspiracy to possess with “intent” to distribute. But Colonia recounts that the district court did not find him guilty of a conspiracy with “intent” to distribute, but of" } ]

[ { "docid": "14528240", "title": "", "text": "acting within the scope of his authority, that ambiguity must be resolved in favor of the arbitrator, as the mere “inference” of ultra vires action is an insufficient “reason for refusing to enforce the award.” United Steelworkers of America v. Enterprise Wheel & Car Co., 363 U.S. 593, 598, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). We will not uphold an arbitrator’s decision, however, when it dispenses its own “brand of industrial justice” outside the scope of an arbitration agreement. United Paperworkers Intern. Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). Rather, we are free to scrutinize an arbitrator’s award “to ensure that the arbitrator acted in conformity with the jurisdictional prerequisites of the collective bargaining agreement.” Delta Queen Steamboat Co. v. District 2 Marine Engineers Beneficial Ass’n, AFL-CIO, 889 F.2d 599, 602 (5th Cir.1989) (citing Con tainer Prods., Inc. v. United Steelworkers of Am., 873 F.2d 818, 820 (5th Cir.1989)). And, “[w]here an arbitrator exceeds his contractual authority, vacation or modification of the award is an appropriate remedy.” Delta Queen, 889 F.2d at 602 (citing Container Prods., 873 F.2d at 820). See also Houston Lighting & Power Co. v. International Broth, of Elec. Workers, Local Union No. 66, 71 F.3d 179, 184 (5th Cir.1995) (If the language of the applicable collective bargaining agreement is “clear and unequivocal, an arbitrator is not free to change its meaning”). In short, an “arbitrator may not ignore the plain language of the contract.” Misco, 484 U.S. at 38, 108 S.Ct. 364. III. The two predominant questions presented in this appeal are (i) whether the district court properly determined that the Board found that Balser’s conduct constituted “just cause” for his termination and (ii) whether the arbitrator exceeded its jurisdiction by improperly interpreting the terms of the CBA, specifically whether the Board erred in determining that American Eagle’s failure to provide Balser with a first-step hearing constituted a serious violation of the Agreement and warranted voiding Balser’s termination. As the Board determined that any violation of American Eagle’s rules and policies committed by Balser was mitigated" } ]

[ { "docid": "9615897", "title": "", "text": "Based on the allegations in UTU’s complaint and on the evidence submitted in connection with the motion to dismiss, the district court believed that the dispute alleged in the complaint was properly characterized as a representation dispute under section 2 Ninth of the RLA, 45 U.S.C. § 152 Ninth. Because such a dispute falls within the exclusive jurisdiction of the National Mediation Board, the district court dismissed UTU’s complaint for lack of subject matter jurisdiction. We review that dismissal de novo. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir.1995); Health Cost Controls v. Skinner, 44 F.3d 535, 536 (7th Cir.1995). II. The RLA defines three classes of labor disputes and provides different procedures for the resolution of each type of dispute. “Minor” disputes are those involving the application or interpretation of an existing collective bargaining agreement. Elgin, Joliet & E. Ry. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1289-90, 89 L.Ed. 1886 (1945); Association of Flight Attendants v. Republic Airlines, Inc., 797 F.2d 352, 357 n. 2 (7th Cir.1986); see also Western Airlines, Inc. v. International Bhd. of Teamsters, 480 U.S. 1301, 1302, 107 S.Ct. 1515, 1515, 94 L.Ed.2d 744 (1987) (O’Connor, Circuit Justice, granting stay). They are to be resolved under the Act through binding arbitration before a system board of adjustment. 45 U.S.C. § 184; Republic Airlines, 797 F.2d at 357 n. 2 (citing International Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am. (Airline Div.) v. Texas Int'l Airlines, Inc., 717 F.2d 157, 158-59 (5th Cir.1983)). Although a federal court has no authority to interpret the terms of a collective bargaining agreement in order to resolve a minor dispute, the court may compel arbitration before the appropriate adjustment board and may enjoin the union from striking in the interim. Western Airlines, 480 U.S. at 302; Burlington Northern R.R. Co. v. United Transp. Union, 862 F.2d 1266, 1272 (7th Cir.1988). “Major” disputes, by contrast, involve the formation of a collective bargaining agreement, and their resolution is governed by section 6 of the RLA, 45 U.S.C. § 156. Burley, 325 U.S. at 723, 65 S.Ct. at" }, { "docid": "22445877", "title": "", "text": "(i) discount rates are generally employed to determine compensatory damages, not punitive damages, and (ii) the arbitrator’s decision did not explicitly award punitive damages, an undeterred Turkmenneft argues that the Tribunal implicitly awarded punitive damages by setting the discount rate too low, and thus exceeded its authority. Section 10(a) of the FAA provides that a court may vacate an award if an arbitral tribunal exceeds its powers during the course of arbitration. 9 U.S.C. § 10(a). It is well-settled in this circuit that, as a general proposition, arbitral action contrary to express contractual provisions is not entitled to deference upon review. See American Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Intern., 343 F.3d 401, 408, 2003 WL 21940716, at *3 (5th Cir.2003); Delta Queen Steamboat Co. v. Dist. 2 Marine Eng’rs Beneficial Ass’n, 889 F.2d 599, 602 (5th Cir.1989). Thus, if punitive damages were indeed awarded in this case, it would be incumbent upon us to vacate such an award, in spite of the discretion typically granted to arbitral decisions. No plausible argument, however, can be made that the Tribunal awarded punitive damages. Under English law, punitive damages are those that extend “beyond mere compensation of the claimant.” 1 Chitty on Contracts § 27-017 (H.G.Beale, gen.ed., 28th ed.1999). See also Attorney General v. Blake, [2001] 1 A.C. 268, 282 (H.L.2000). Thus, any award that does not further the goal of compensation is impermissible under the terms of the agreement. Turkmenneft’s bald claims to the contrary, there is simply no colorable argument that an award of punitive damages was embedded in the arbitrator’s determination of the discount rate, given our conclusion, supra, that the arbitrator did not manifestly disregard the law in setting the discount rate. Thus, because there was no explicit award of punitive damages and the discount rate, a device used for setting compensatory damages, was not selected in manifest disregard of the law, we reject Turkmenneft’s argument that the arbitrator awarded pu nitive damages. Accordingly, the district court’s determination on this issue is also affirmed. CONCLUSION For the foregoing reasons, the district court’s decision refusing the vacate" }, { "docid": "11079286", "title": "", "text": "panel exceeds the scope of its jurisdiction if it ignores an explicit term in a CBA. See Cont’l Airlines, 391 F.3d at 620 (noting that an interpretation which reads out a phrase from an agreement cannot be an arguable construction of the agreement). By not making any finding as to the necessary element of causation, the NRAB essentially ignored a term of the CBA. Accordingly, sustaining the claims without any finding as to the second element of Article XV was “wholly baseless and without reason” and not an interpretation of the CBA. For this reason, the Award should be vacated and the claims remanded to the NRAB. C. The NRAB acted within its jtirisdiction in directing BNSF to produce the source documents. The role of the arbitrator is “confined to interpretation and application of the [CBA]; he does not sit to dispense his own brand of industrial justice.” United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The Supreme Court has explained that: [T]he arbitrator’s award settling a dispute with respect to the interpretation or application of a labor agreement must draw its essence from the contract and cannot simply reflect the arbitrator’s own notions of industrial justice. But as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision. Misco, 484 U.S. at 38, 108 S.Ct. 364; see also Cont’l Airlines, 391 F.3d at 617 (noting that an award must be “grounded in the CBA”); Bhd. of Locomotive Eng’rs v. Atchison, Topeka & Santa Fe Ry. Co., 768 F.2d 914, 922 (7th Cir.1985) (“The test is not error; it is ultra vires.”). In drawing on the “essence” of the contract, the NRAB is not limited to interpreting the explicit language in the CBA, but can look to implied terms as well as the parties’ practice, usage, and custom. Bhd. of Ry. Carmen v. Atchison, Topeka & Santa Fe Ry. Co., 894" }, { "docid": "15284181", "title": "", "text": "favor of UPS, finding that the failure to deliver the packages was “not about mere negligence nor failure of procedures,” but was instead a “deliberate action.” As such, Ramos had violated Article 11, § 3 of the CBA and UPS had properly terminated his employment. Thereafter, Ramos filed a complaint in Puerto Rico state court challenging the arbitrator’s decision. UPS promptly removed the case to the District Court for the District of Puerto Rico based on jurisdiction granted by § 301 of the Labor Management Relations Act. 29 U.S.C. § 185(a) (2000). On August 7, 2006, UPS filed a motion for summary judgment, which Ramos opposed. The district court granted the motion on October 2, 2006, finding that the arbitral award was a plausible interpretation of the CBA. Subsequently, the district court granted UPS’s request for costs on November 2, 2006. Ramos now appeals the district court’s decision, as well as its award of costs. II. Discussion A. Arbitration Award 1. Standard of Review We review a district court’s decision to vacate or confirm an arbitration award de novo. Cytyc Corp. v. DEKA Prods. Ltd. P’ship, 439 F.3d 27, 32 (1st Cir.2006). A federal court’s review of an arbitrator’s decision, however, is “ ‘extremely narrow and exceedingly deferential.’ ” Airline Pilots Ass’n, Int'l v. Pan Am. Airways Corp., 405 F.3d 25, 30 (1st Cir.2005) (quoting Bull HN Info. Sys., Inc. v. Hutson, 229 F.3d 321, 330 (1st Cir.2000)); First State Ins. Co. v. Banco de Seguros del Estado, 254 F.3d 354, 357 (1st Cir.2001) (quoting Wheelabrator Envirotech Operating Servs. Inc. v. Mass. Laborers Dist. Council Local 1144, 88 F.3d 40, 43 (1st Cir.1996)). Indeed, it is “among the narrowest known in the law.” Maine Cent. R.R. Co. v. Bhd. of Maint. of Way Employees, 873 F.2d 425, 428 (1st Cir.1989). When parties include an arbitration clause in their collective-bargaining agreement, they are choosing to forego a number of legal options in favor of having their disputes regarding the construction of that contract settled by an arbitrator. As this was the bargain the parties struck, they are bound by the arbitrator’s" }, { "docid": "11079280", "title": "", "text": "asking the NRAB to determine which of the parties’ competing confidentiality agreements should be signed. On December 7, 2006, the NRAB entered Interpretation No. 2, sustaining BMWE’s claims based on the negative inference that “had [BNSF] produced the information sought by [BMWE], that information would have supported [BMWE’s] position.” As was the case with the Award, there was no finding in Interpretation No. 2 on whether BMWE had shown that the employees were furloughed as a direct result of the subcontracting. On January 5, 2007, BNSF appealed the Award to the United States District Court for the Northern District of Texas. The district court granted BNSF’s motion for summary judgment and vacated the Award, holding that the NRAB failed to interpret the CBA and instead added new terms to the CBA based on its “own notions of industrial justice.” BNSF Ry. Co. v. Bhd. of Maint. of Way Employees, 523 F.Supp.2d 498, 506 (N.D.Tex.2007) (holding that the NRAB’s “discovery mandate certainly did not draw its essence from the [CBA]”). II. DISCUSSION A. Standard of Review “This court reviews de novo a district court’s grant and denial of summary judgment.” Cont'l Airlines, Inc. v. Int’l Bhd. of Teamsters, 391 F.3d 613, 616 (5th Cir.2004). Likewise, a district court’s conclusion that an award was not based on the terms of the CBA is reviewed de novo. E.I. DuPont de Nemours & Co. v. Local 900 of the Int'l Chem. Workers Union, 968 F.2d 456, 458 (5th Cir.1992). Under the Railway Labor Act (the “RLA”), 45 U.S.C. §§ 151-188, minor disputes involving the interpretation of terms in an existing collective bargaining agreement — such as the dispute in this case — must be resolved through binding arbitration before the NRAB or another adjustment board. See Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 303-04, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989). These arbitration remedies “were intended by Congress to be the complete and final means for settling minor disputes.” Bhd. of Locomotive Eng’rs v. Louisville & Nashville R.R. Co., 373 U.S. 33, 39, 83 S.Ct. 1059, 10 L.Ed.2d 172 (1963)" }, { "docid": "11079287", "title": "", "text": "[T]he arbitrator’s award settling a dispute with respect to the interpretation or application of a labor agreement must draw its essence from the contract and cannot simply reflect the arbitrator’s own notions of industrial justice. But as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision. Misco, 484 U.S. at 38, 108 S.Ct. 364; see also Cont’l Airlines, 391 F.3d at 617 (noting that an award must be “grounded in the CBA”); Bhd. of Locomotive Eng’rs v. Atchison, Topeka & Santa Fe Ry. Co., 768 F.2d 914, 922 (7th Cir.1985) (“The test is not error; it is ultra vires.”). In drawing on the “essence” of the contract, the NRAB is not limited to interpreting the explicit language in the CBA, but can look to implied terms as well as the parties’ practice, usage, and custom. Bhd. of Ry. Carmen v. Atchison, Topeka & Santa Fe Ry. Co., 894 F.2d 1463, 1468 (5th Cir.1990) (citing Consol. Rail, 491 U.S. at 311, 109 S.Ct. 2477). In concluding that the NRAB acted outside of its jurisdiction, the district court noted that the CBA does not include any language regarding the production of data under Article XV. BNSF Ry., 523 F.Supp.2d at 507. Because the CBA is silent on BNSF’s obligation to turn over such information, the district court concluded that the NRAB added a new term to the CBA. Id. (holding that the absence of a term means that only the parties, and not the NRAB, can resolve that issue). The district court also gave significant consideration to Norfolk & Western Railway Company v. Transportation Communications International Union, 17 F.3d 696 (4th Cir.1994). In Norfolk & Western, the collective bargaining agreement contained a clause stating that the arbitration board “shall have authority to request the production of additional evidence from any party.” Id. at 700 n. 3. The arbitration board acknowledged that the power to request was not the same as the power to compel the" }, { "docid": "15284182", "title": "", "text": "arbitration award de novo. Cytyc Corp. v. DEKA Prods. Ltd. P’ship, 439 F.3d 27, 32 (1st Cir.2006). A federal court’s review of an arbitrator’s decision, however, is “ ‘extremely narrow and exceedingly deferential.’ ” Airline Pilots Ass’n, Int'l v. Pan Am. Airways Corp., 405 F.3d 25, 30 (1st Cir.2005) (quoting Bull HN Info. Sys., Inc. v. Hutson, 229 F.3d 321, 330 (1st Cir.2000)); First State Ins. Co. v. Banco de Seguros del Estado, 254 F.3d 354, 357 (1st Cir.2001) (quoting Wheelabrator Envirotech Operating Servs. Inc. v. Mass. Laborers Dist. Council Local 1144, 88 F.3d 40, 43 (1st Cir.1996)). Indeed, it is “among the narrowest known in the law.” Maine Cent. R.R. Co. v. Bhd. of Maint. of Way Employees, 873 F.2d 425, 428 (1st Cir.1989). When parties include an arbitration clause in their collective-bargaining agreement, they are choosing to forego a number of legal options in favor of having their disputes regarding the construction of that contract settled by an arbitrator. As this was the bargain the parties struck, they are bound by the arbitrator’s decision. See Keebler Co. v. Truck Drivers, Local 170, 247 F.3d 8, 10 (1st Cir.2001). In the spirit of freedom of contract then, we cannot review the merits of the underlying dispute and are obligated to enforce the arbitral award unless the decision fails to “draw[ ] its essence from the collective bargaining agreement.” See United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); accord Kraft Foods, Inc. v. Office & Prof. Employees Int'l Union, Local 1295, 203 F.3d 98, 100 (1st Cir.2000). Though we may be convinced that the arbitrator committed a serious error, if she is “even arguably construing or applying the contract and acting within the scope of his authority,” we may not overturn the arbitrator’s decision. United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). 2. Review of the Arbitration Award This Court has recognized a very limited exception under which we may vacate an arbitration award when there is" }, { "docid": "23083634", "title": "", "text": "which he derives his power. International Ladies’ Garment Workers’ Union v. Ashland Indus., Inc., 488 F.2d 641, 643-44 (5th Cir.), cert. denied, 419 U.S. 840, 95 S.Ct. 71, 42 L.Ed.2d 68 (1974). We have also held that “arbitral action contrary to express contractual provisions will not be respected” on judicial review. Delta Queen Steamboat Co. v. District 2 Marine Eng’rs Beneficial Ass’n, 889 F.2d 599, 604 (5th Cir.1989), cert. denied, 498 U.S. 853, 111 S.Ct. 148, 112 L.Ed.2d 114 (1990); see also Misco, 484 U.S. at 38, 108 S.Ct. at 370-71 (“The arbitrator may not ignore the plain language of the contract_”). Thus, if a collective bargaining agreement permits an employer to discharge an employee for “proper cause,” and the arbitrator expressly or implicitly finds that proper cause existed, we will vacate the arbitrator’s inconsistent reinstatement award. Delta Queen, 889 F.2d at 604; Container Prods., Inc. v. United Steelworkers of Am., Local 5651, 873 F.2d 818, 819-20 (5th Cir.1989). b. The Particulars of the Purchase Agreement Having determined that we must uphold the arbitrator’s award if the arbitrator’s award was drawn “from the letter or the purpose” of the underlying contract, Brotherhood of R.R. Trainmen, 415 F.2d at 412, we turn to the particulars of the Executone- Isoetee purchase agreement. As we have already seen, the parties agreed in mid-1989 that Executone would buy either all of Isoe-tee’s stock or all of Isoetee’s assets at the beginning of 1990. The parties further agreed that the purchase price to be paid by Executone would be based on Isoetee’s adjusted pre-tax profits for 1989. To ensure that Isoetec’s 1989 records accurately reflected its profits for the year, the parties agreed that Isoetee would procure an audit from BDO Seidman and Executone would provide for a subsequent review from Arthur Andersen. From this, it is clear that a predominate purpose of the parties in drafting the purchase agreement was to make sure that the Isoetee purchase price fairly reflected Isoetec’s 1989 profits. Indeed, Isoe-tec specifically agreed to operate normally during 1989 “and not manage the business simply to artificially increase 1989 earnings.” In" }, { "docid": "11079285", "title": "", "text": "claim.” The NRAB did precisely that in Interpretation No. 2: it drew an adverse inference from BNSF’s failure to comply with the Award and sustained the claims without making any finding as to whether the employees’ furloughs were “a direct result” of the inferred increase in subcontracting. The logic supporting the adverse inference rule is that a party fails to produce evidence in its control in order to conceal adverse facts. There is no necessary connection between the contents of the source documents (which relate only to subcontracting expenses) and the causal relationship with a claimant’s furlough. See Transcon. Gas Pipe Line Corp. v. Mobile Drilling Barge, 424 F.2d 684, 694 (5th Cir.1970) (holding that a party who benefits from an adverse inference must still establish the remaining elements of a tort claim). Thus, assuming that the NRAB was correct in drawing an adverse inference against BNSF, that inference only established that subcontracting had increased and not that the furloughs were a direct result of that increased subcontracting. We have previously held that an arbitration panel exceeds the scope of its jurisdiction if it ignores an explicit term in a CBA. See Cont’l Airlines, 391 F.3d at 620 (noting that an interpretation which reads out a phrase from an agreement cannot be an arguable construction of the agreement). By not making any finding as to the necessary element of causation, the NRAB essentially ignored a term of the CBA. Accordingly, sustaining the claims without any finding as to the second element of Article XV was “wholly baseless and without reason” and not an interpretation of the CBA. For this reason, the Award should be vacated and the claims remanded to the NRAB. C. The NRAB acted within its jtirisdiction in directing BNSF to produce the source documents. The role of the arbitrator is “confined to interpretation and application of the [CBA]; he does not sit to dispense his own brand of industrial justice.” United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The Supreme Court has explained that:" }, { "docid": "1048540", "title": "", "text": "contrast, the CBA at issue here does not limit the subcontracting right. In fact, the Arbitrator recognized as much by stating that the language of the CBA does not limit Beaird’s right to subcontract. In other words, the subcontracting provision is unambiguous. It is well-established that courts may set aside awards when the arbitrator exceeds his contractual mandate by acting contrary to express contractual provisions. Delta Queen Steamboat Co. v. Dist. 2 Marine Eng’rs Beneficial Ass’n, 889 F.2d 599, 604 (5th Cir.1989). Although an arbitrator may look beyond the written CBA if it is ambiguous or silent upon a precise question, id. at 602, the Arbitrator has expressly recognized that the CBA is not ambiguous on Beaird’s subcontracting right. Although the CBA does qualify the management rights if “specifically provided in this agreement,” the Arbitrator points to no provision in the agreement that limits the subcontracting rights. Simply referencing the agreement is insufficient for this court to uphold the award. The Arbitrator must show that the award is rationally inferable in some logical way from the agreement. Folger, 905 F.2d at 111. No such inference can be drawn here to support the Arbitrator’s award. The conclusion that the subcontracting rights were not limited by the CBA should have ended the Arbitrator’s inquiry — the remainder of his decision, which balanced the interests of the Union with Beaird’s economic savings, can only be characterized as the Arbitrator’s “own brand of industrial justice”. We do not affirm the district court’s decision to vacate the Arbitrator’s award because we disagree with the outcome, but because the Arbitrator has failed utterly to draw his conclusions from the essence of the CBA. Ill For the foregoing reasons, the decision of the district court granting Beaird summary judgment and vacating the award of the Arbitrator is AFFIRMED. . Inasmuch as the Union draws support from Folger, it is our understanding that Folger represents the outer limits of the deference that our court should give to arbitral awards. Although we need not do so in this particular instance because the Beaird CBA is distinguishable, it may be" }, { "docid": "11079302", "title": "", "text": "information would have supported [BMWE's] position. . This court also recognizes a fourth, implied ground for review: whether an award violated a party’s due process rights. See Mitchell v. Cont'l Airlines, Inc., 481 F.3d 225, 231 (5th Cir.2007). . The district court concluded that the NRAB did not have the authority to direct production of any discovery from BNSF and, therefore, it did not need to reach the NRAB’s failure to make a finding as to the causation requirement. However, it did note that the NRAB “obviously did sidestep that potentially dispositive issue and [ ] there does not appear to be any justification for it having done so.” BNSF Ry., 523 F.Supp.2d at 508. . Although Misco involved the Labor Management Relations Act, this court has applied its holding to awards under the RLA. See Cont’l Airlines, 391 F.3d at 617 n. 3. . In Norfolk & Western, the district court concluded that the arbitration board exceeded its jurisdiction, but granted enforcement of the award based on the extremely narrow standard of review. Id. at 699. The Fourth Circuit held that the district court had too narrowly construed the standard of review to the point of eliminating any meaningful review of arbitration awards. Id. at 700. The Fourth Circuit disagreed with the district court and found that the arbitration board acted within its authority and the district court’s order was affirmed despite being based on a misapplication of the standard of review. Id. at 702. . In analyzing the Award, the district court failed to discuss the two different types of documents that the NRAB directed BNSF to disclose. The Award requires that BNSF produce: (1) the source documents supporting the R-l reports used to calculate the base level of subcontracting for the 1992-1996 period and (2) monthly data for the post-1996 period. The district court did not acknowledge that the NRAB provided completely different justifications related to each type of documentation. Our discussion focuses on the source documents because the district court never considered the post-1996 information. Regarding the post-1996 data, the NRAB concluded that BNSF needed to" }, { "docid": "22445876", "title": "", "text": "the factors that it deemed most appropriate for this particular income stream: the risk inherent in the venture, potential inflation, and the time-value of money. Thus, given that (i) Turkmenneft can cite no legal authority indicating that the arbitrator misapplied the law, (ii) an arbitrator’s determination of a discount rate is a question of fact that will depend on the case’s unique circumstances and on differing opinions regarding financial or economic theory, and (iii) the high degree of deference we afford arbitral decisions of this kind, it is clear that Turkmenneft cannot satisfy the first-prong of the manifest-disregard test. Because it is clear that the first prong of this test is not satisfied, we need not address the second. Accordingly, the district court’s determination upholding the arbitrator’s discount rate is affirmed. IV. The final issue of this appeal is whether the district court correctly refused to vacate the Tribunal’s award on the ground that it exceeded its authority by awarding punitive damages. Punitive damages were expressly forbidden by the terms of the JVA. Acknowledging that (i) discount rates are generally employed to determine compensatory damages, not punitive damages, and (ii) the arbitrator’s decision did not explicitly award punitive damages, an undeterred Turkmenneft argues that the Tribunal implicitly awarded punitive damages by setting the discount rate too low, and thus exceeded its authority. Section 10(a) of the FAA provides that a court may vacate an award if an arbitral tribunal exceeds its powers during the course of arbitration. 9 U.S.C. § 10(a). It is well-settled in this circuit that, as a general proposition, arbitral action contrary to express contractual provisions is not entitled to deference upon review. See American Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Intern., 343 F.3d 401, 408, 2003 WL 21940716, at *3 (5th Cir.2003); Delta Queen Steamboat Co. v. Dist. 2 Marine Eng’rs Beneficial Ass’n, 889 F.2d 599, 602 (5th Cir.1989). Thus, if punitive damages were indeed awarded in this case, it would be incumbent upon us to vacate such an award, in spite of the discretion typically granted to arbitral decisions. No plausible argument, however," }, { "docid": "9890461", "title": "", "text": "of fraud or corruption. 45 U.S.C. § 153(q)(2004). Normally, an award is deemed to be within the Board’s jurisdiction when it is grounded in the CBA. See Delta Queen Steamboat Co. v. Dist. 2 Marine Eng’rs Beneficial Ass’n, 889 F.2d 599, 602 (5th Cir.1989). Absent one of these grounds, an award is binding upon the parties and the findings are conclusive. Eastern Air Lines, Inc. v. Transport Workers Union, 580 F.2d 169, 172 (5th Cir.1978). Unless a court concludes that the Board’s interpretation of the contract is “wholly baseless and completely without reason,” the Board’s interpretation must stand. Id. (quoting Gunther v. San Diego & Ariz. Eastern Ry. Co., 382 U.S. 257, 261, 86 S.Ct. 368, 15 L.Ed.2d 308 (1965)). The Supreme Court has explained that in reviewing a Board’s interpretation of a contract, a court should not reject an award on ■the ground that the arbitrator misread the contract. ■... [T]he arbitrator’s award settling a dispute with respect to the interpretation or application of a labor agreement must draw its essence from the contract and cannot simply reflect the arbitrator’s own notions of industrial justice. But as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is ■convinced he committed serious error doés not suffice to overturn his decision. United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). ' The district court employed this highly deferential standard in reviewing the Board’s award. Continental argues that because this dispute involved an LCA and because the Board ignored an express term of the agreement, the district court should have reviewed the award under a “no deference” standard, pursuant to this court’s decision in Cooper Natural Resources. IBT contends that the holding of Cooper Natural Resources does not require that awards involving LCAs receive more searching judicial review; i.e., less deference, than awards involving collective bargaining agreements. In Cooper Natural Resources, this court upheld the district court’s vacatur of an arbitrator’s award, in part because the arbitrator ignored the" }, { "docid": "11079281", "title": "", "text": "“This court reviews de novo a district court’s grant and denial of summary judgment.” Cont'l Airlines, Inc. v. Int’l Bhd. of Teamsters, 391 F.3d 613, 616 (5th Cir.2004). Likewise, a district court’s conclusion that an award was not based on the terms of the CBA is reviewed de novo. E.I. DuPont de Nemours & Co. v. Local 900 of the Int'l Chem. Workers Union, 968 F.2d 456, 458 (5th Cir.1992). Under the Railway Labor Act (the “RLA”), 45 U.S.C. §§ 151-188, minor disputes involving the interpretation of terms in an existing collective bargaining agreement — such as the dispute in this case — must be resolved through binding arbitration before the NRAB or another adjustment board. See Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 303-04, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989). These arbitration remedies “were intended by Congress to be the complete and final means for settling minor disputes.” Bhd. of Locomotive Eng’rs v. Louisville & Nashville R.R. Co., 373 U.S. 33, 39, 83 S.Ct. 1059, 10 L.Ed.2d 172 (1963) (discussing Union Pac. R.R. Co. v. Price, 360 U.S. 601, 616-17, 79 S.Ct. 1351, 3 L.Ed.2d 1460 (1959)); see also Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978) (“Congress considered it essential to keep these so-called ‘minor’ disputes within the Adjustment Board and out of the courts. The effectiveness of the Adjustment Board in fulfilling its task depends on the finality of its determinations.” (citation omitted)). Accordingly, “the federal courts do not sit as super arbitration tribunals in suits brought to enforce awards of the Adjustment Board. They may not substitute their judgments for those of the Board divisions.” Diamond v. Terminal Ry. Ala. State Docks, 421 F.2d 228, 233 (5th Cir.1970); see also United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) (“Courts thus do not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts.”). We have described the scope of our" }, { "docid": "23083633", "title": "", "text": "collective bargaining agreement neither permitted nor precluded such a remedy. Minute Maid Co. v. Citrus Workers, Local 444, 331 F.2d 280, 281 (5th Cir.1964). In Amalgamated Meat Cutters of N. Am., Dist. Local No. 540 v. Neuhoff Bros. Packers, Inc., 481 F.2d 817, 819 (5th Cir.1973), we enforced an arbitrator’s award reinstating employees accused of theft and held that it was permissible for the arbitrator to require the employer to prove the employees guilty beyond a reasonable doubt. In United Steelworkers of Am. v. United States Gypsum Co., 492 F.2d 713, 728-32 (5th Cir.), cert. denied, 419 U.S. 998, 95 S.Ct. 312, 42 L.Ed.2d 271 (1974), we enforced an arbitrator’s award, agreeing that it was within the arbitrator’s power to find that an employer had breached a promise to negotiate a wage increase and to award the employees what the arbitrator believed would have been gained through negotiations. These cases may be contrasted with those in which we have vacated arbitration awards. We have held that an arbitrator may not invalidate the very agreement from which he derives his power. International Ladies’ Garment Workers’ Union v. Ashland Indus., Inc., 488 F.2d 641, 643-44 (5th Cir.), cert. denied, 419 U.S. 840, 95 S.Ct. 71, 42 L.Ed.2d 68 (1974). We have also held that “arbitral action contrary to express contractual provisions will not be respected” on judicial review. Delta Queen Steamboat Co. v. District 2 Marine Eng’rs Beneficial Ass’n, 889 F.2d 599, 604 (5th Cir.1989), cert. denied, 498 U.S. 853, 111 S.Ct. 148, 112 L.Ed.2d 114 (1990); see also Misco, 484 U.S. at 38, 108 S.Ct. at 370-71 (“The arbitrator may not ignore the plain language of the contract_”). Thus, if a collective bargaining agreement permits an employer to discharge an employee for “proper cause,” and the arbitrator expressly or implicitly finds that proper cause existed, we will vacate the arbitrator’s inconsistent reinstatement award. Delta Queen, 889 F.2d at 604; Container Prods., Inc. v. United Steelworkers of Am., Local 5651, 873 F.2d 818, 819-20 (5th Cir.1989). b. The Particulars of the Purchase Agreement Having determined that we must uphold the arbitrator’s award" }, { "docid": "14528265", "title": "", "text": "with the contract’s plain language, and therefore not subject to judicial reversal. Eastern Associated Coal 531 U.S. at 62, 121 S.Ct. 462. Consequently, the majority’s substitution of its own interpretation of Section 20(A)(2) of the contract was legally erroneous. The majority also suggests that there may be a federal common law prohibition on an arbitrator’s consideration of an employer’s post-termination behavior in determining just cause. Assertion of such a prohibition is contrary to Misco, which explained that “procedural questions which grow out of the dispute and bear on its ljust cause determination] are to be left to the arbitrator,” except where fraud or gross misconduct are alleged. Misco, 484 U.S. at 40, 108 S.Ct. 364. Moreover, the case cited by the majority for this federal common law limitation on arbitrator discretion in fact reiterates the foundational rule that the limits on an arbitrator’s discretion are only found in the collective bargaining agreement itself. In Gulf Coast Industrial Workers Union v. Exxon Co., 991 F.2d 244 (5th Cir.1993), the labor agreement in question stated that Exxon “shall have the right to disei- pline and discharge employees for just cause.” Id. at 247. The contract further specified that drug use constituted just cause, and rendered an employee “liable to discharge on the first offense.” Id. This contract language imposed the relevant restriction on the arbitrator: once an arbitrator found that drug use had occurred, termination had to be upheld. Thus, we refused to enforce the arbitrator’s award where he reinstated an employee who had been found using drugs because the contract limited the arbitrator’s discretion once just cause was found. Id. at 256. See also Delta Queen Steamboat Co. v. District 2 Marine Engineers Beneficial Association, 889 F.2d 599, 604 (5th Cir.1989) (finding that because contract defined “proper cause” for termination as including “carelessness,” once that finding was made no further inquiry was appropriate). Here there is no such contractual definition of just cause limiting the arbitrator’s discretion. Absent such a restriction, the arbitrator was free to consider the contractual due process as a component of just cause. Chauffeurs, 613 F.2d at" }, { "docid": "1048539", "title": "", "text": "written provisions of this Agreement are ... the determination of the nature and extent of work, if any, to be contracted or transferred out and the persons, means and methods to be utilized. Id. at 109 n. 3 (emphasis added). The court focused on the “exception” language as limiting the subcontracting right, finding that another provision of the Agreement, which stated that subcontracting cannot be used to undermine the Union where the bargaining relationship is already established, limited the subcontracting right. Id. at 111. Taking these two provisions together, the court held that “absent a specific provision which completely and explicitly entitles the Company to contract out regardless of its effect on the bargaining unit, a reasonable interpretation of the contract is that subcontracting must be balanced against the rights of the employees, the Company and the Union. The subcontracting clause is neither specific nor unambiguous.” Id. at 111. Because arbitrators need only show that the award is rationally inferable in some logical way from the agreement, the arbitrator’s award was valid in Folger, In contrast, the CBA at issue here does not limit the subcontracting right. In fact, the Arbitrator recognized as much by stating that the language of the CBA does not limit Beaird’s right to subcontract. In other words, the subcontracting provision is unambiguous. It is well-established that courts may set aside awards when the arbitrator exceeds his contractual mandate by acting contrary to express contractual provisions. Delta Queen Steamboat Co. v. Dist. 2 Marine Eng’rs Beneficial Ass’n, 889 F.2d 599, 604 (5th Cir.1989). Although an arbitrator may look beyond the written CBA if it is ambiguous or silent upon a precise question, id. at 602, the Arbitrator has expressly recognized that the CBA is not ambiguous on Beaird’s subcontracting right. Although the CBA does qualify the management rights if “specifically provided in this agreement,” the Arbitrator points to no provision in the agreement that limits the subcontracting rights. Simply referencing the agreement is insufficient for this court to uphold the award. The Arbitrator must show that the award is rationally inferable in some logical way from" }, { "docid": "17584546", "title": "", "text": "L.Ed.2d 286 (1987)). . Beaird, 404 F.3d at 944 (quoting Misco, 484 U.S. at 38, 108 S.Ct. 364). . Id. . Id. at 946-47. See also Houston Lighting & Power Co. v. Int’l Bhd. of Elec. Workers, Local Union No. 66, 71 F.3d 179, 182 (5th Cir.1995) (\"The 'rule in this circuit, and the emerging trend among other courts of appeals, is that arbitral action contrary to express contractual provisions will not be respected.’ \") (quoting Delta Queen Steamboat Co. v. Dist. 2 Marine Eng’rs Beneficial Ass’n, 889 F.2d 599, 604 (5th Cir.1989)). . 905 F.2d 108 (5th Cir.1990). . 147 F.3d 399 (5th Cir.1998). . 906 F.2d 1499 (10th Cir.1990). . 404 F.3d at 944-47. .Beaird, 404 F.3d at 944 (quoting Misco, 484 U.S. at 38, 108 S.Ct. 364). . Her use of the term “generally accepted” suggests reliance on prior legal interpretations of similar contracts, but that is different from reliance on precedential interpretations of the CBA at issue. After all, all judges when interpreting contracts, even in the first instance, use rules and maxims derived from other cases. . Subcontracting is mentioned once, but only in the section requiring any subcontractors to be paid at certain rates. . In NCR Corp., 906 F.2d at 1505-06, the Tenth Circuit construed a recognition clause as a limitation on an express right-to-subcontract clause. This goes even further than we do since the CBA here contains no express right-to-subcontract clause. At oral argument, RPP contended that we cannot rely on the recognition clause because the arbitrator did not rely on it in her analysis. This mistakes the nature of our review of arbitral awards, which we review in toto only to determine whether they draw their \"essence” from the CBA. After all, arbitrators need not, and sometimes do not, attach any reasoning to their awards, and we do not by virtue of that fact vacate such awards. See Sarofim v. Trust Company of the West, 440 F.3d 213, 218 (5th Cir.2006). Moreover, we can affirm a federal district court's judgment on grounds presented by the parties but not relied on by" }, { "docid": "17584545", "title": "", "text": "eligible to transfer, but it identified no such openings or workers through its \"posting” system. The record on appeal lacks this agreement, although the ar bitrator found that, \"[a]pparently, Shell wished to retain all of its [maintenance workers]” and \"the [maintenance workers] wished to continue to be employed [by Shell].” RPP also alleges that Shell and the Union refused to release maintenance workers for whom RPP had offered jobs; although it cites only briefs, not record evidence, for this allegation, it is consistent with the arbitrator's findings. . Shell was a subcontractor because, under the interim services agreement, it retained the right to control its employees, including the right to control hours of work and delegation of assignments. . 404 F.3d 942, 944 (5th Cir.2005). . Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 762 (5th Cir.2001). .Beaird, 404 F.3d at 944. . Weber Aircraft Inc. v. Gen. Warehousemen & Helpers Union Local 767, 253 F.3d 821, 824 (quoting United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987)). . Beaird, 404 F.3d at 944 (quoting Misco, 484 U.S. at 38, 108 S.Ct. 364). . Id. . Id. at 946-47. See also Houston Lighting & Power Co. v. Int’l Bhd. of Elec. Workers, Local Union No. 66, 71 F.3d 179, 182 (5th Cir.1995) (\"The 'rule in this circuit, and the emerging trend among other courts of appeals, is that arbitral action contrary to express contractual provisions will not be respected.’ \") (quoting Delta Queen Steamboat Co. v. Dist. 2 Marine Eng’rs Beneficial Ass’n, 889 F.2d 599, 604 (5th Cir.1989)). . 905 F.2d 108 (5th Cir.1990). . 147 F.3d 399 (5th Cir.1998). . 906 F.2d 1499 (10th Cir.1990). . 404 F.3d at 944-47. .Beaird, 404 F.3d at 944 (quoting Misco, 484 U.S. at 38, 108 S.Ct. 364). . Her use of the term “generally accepted” suggests reliance on prior legal interpretations of similar contracts, but that is different from reliance on precedential interpretations of the CBA at issue. After all, all judges when interpreting contracts, even in the first instance, use rules" }, { "docid": "14528266", "title": "", "text": "“shall have the right to disei- pline and discharge employees for just cause.” Id. at 247. The contract further specified that drug use constituted just cause, and rendered an employee “liable to discharge on the first offense.” Id. This contract language imposed the relevant restriction on the arbitrator: once an arbitrator found that drug use had occurred, termination had to be upheld. Thus, we refused to enforce the arbitrator’s award where he reinstated an employee who had been found using drugs because the contract limited the arbitrator’s discretion once just cause was found. Id. at 256. See also Delta Queen Steamboat Co. v. District 2 Marine Engineers Beneficial Association, 889 F.2d 599, 604 (5th Cir.1989) (finding that because contract defined “proper cause” for termination as including “carelessness,” once that finding was made no further inquiry was appropriate). Here there is no such contractual definition of just cause limiting the arbitrator’s discretion. Absent such a restriction, the arbitrator was free to consider the contractual due process as a component of just cause. Chauffeurs, 613 F.2d at 721; Maremont Corp., 515 F.Supp. at 173. Cf. Weber Aircraft v. General Warehousemen & Helpers Union, 253 F.3d 821, 824-25 (5th Cir.2001) (explaining that where contract did not strictly define just cause, nor limit the arbitrator’s discretion in deciding penalties, arbitrator was free to fashion a lesser remedy than discharge for less aggravated infractions). Finally, the majority holds that the arbitrator implicitly found just cause here, and therefore that it exceeded its authority in then considering American Eagle’s contract violations in reducing Balser’s punishment. In reaching this conclusion the majority misinterprets the import of our decisions in Delta Queen and E.I. DuPont de Nemours v. Local 900 of the Int’l Chemical Workers Union (“Dupont”), 968 F.2d 456 (5th Cir.1992), and fads to follow United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). In Delta Queen we explained that the phrase just cause “carries no talismanic significance in labor jurisprudence.” Delta Queen, 889 F.2d at 604. “If a collective bargaining agreement defines ‘proper cause’ to" } ]

[ { "docid": "21066094", "title": "", "text": "case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to- the question whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case.”); see also Poe v. Leonard, 282 F.3d 123, 133 (2d Cir.2002) (“Were we immediately to decide whether [the defendant’s] actions were objectively reasonable, we would fail to provide any guidance to supervisors of future [potential plaintiffs] about what the law requires.”). These considerations apply pari ratione to a federal court’s consideration of state court decisions pursuant to habeas petitions, as governed by the AEDPA. Under the AEDPA, the result of the first step of the analysis — our conclusions as to the correct interpretation of Supreme Court precedent — will not, of course, be binding on state courts. Mask v. McGinnis, 252 F.3d 85, 90 (2d Cir.2001) (per curiam) (noting that a petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent). In fact, what is said in the first step is not binding on federal courts either, since the reasonableness of the state court’s application of Supreme Court precedent — the decisive issue under the AEDPA — does not turn on the federal court’s view of the correct interpretation of that precedent. Cf. Horne v. Coughlin, 178 F.3d 603, 604 (2d Cir.1999) (petition for rehearing). That the federal court’s reading of Supreme Court precedent is dicta does not mean, however, that it is necessarily unreliable. This is not an area in which “the presentation lacks the ‘concrete adverseness ... upon which the court so largely depends for illumination of difficult constitutional questions.’” Id. at 605 (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (discussing standing requirement)). In arguing that a state court’s application of Supreme Court precedent was reasonable or unreasonable, the parties must address the merits of them respective readings of that precedent. And to" } ]

[ { "docid": "16739929", "title": "", "text": "due process rights by admitting the preliminary hearing testimony of deceased witness Thomas Jones and by excluding other evidence relevant to Thomas Jones’s testimony; that the state court did not violate Maxwell’s due process rights by excluding third-party culpability evidence; and that Maxwell’s due process rights were not violated by the prosecution’s knowing use of perjured testimony from Storch and other jailhouse informants. With respect to Storch, the district court concluded that the state court’s finding that the housing records were ambiguous was not objectively unreasonable; that Storch’s lies about the deal he received from the prosecution and about his informant history did not prejudice Maxwell; and that the prosecution did not violate Brady because any withheld information was neither material nor prejudicial. Accordingly, judgment denying the petition with prejudice was entered in May 2006. Maxwell timely appealed. III. Standard of Review We review de novo the district court’s denial of a state prisoner’s habeas petition. Parle v. Runnels, 505 F.3d 922, 926 (9th Cir.2007). Maxwell’s petition is governed by AEDPA. Under AEDPA, a state prisoner is entitled to relief if the state court adjudication of a claim resulted in a decision that (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d). “Clearly established” federal law for purposes of AEDPA § 2254(d)(1) consists only of Supreme Court holdings; however, circuit court precedent may be “persuasive” in demonstrating what law is “clearly established” and whether a state court applied that law unreasonably. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). As we explain below, when a state court adjudication is based on an anteced ent unreasonable determination of fact, we proceed to consider the petitioner’s related claim de novo. Detrich v. Ryan, 619 F.3d 1038, 1059-1060 (9th Cir.2010). We review the state court’s last reasoned decision. Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir.2005) (citing Ylst v." }, { "docid": "178972", "title": "", "text": "ink is hardly dry on the Supreme Court’s latest reversal of another of our judgments where we disregarded the deference the Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires we give state court.decisions that any trial court errors were harmless, thus precluding any entitlement to habeas relief. Yet here we have gone and done it again. The panel majority (the “Majority”) today rejects a California appellate court’s reasoned and supported conclusion that pros-ecutorial misstatements made during Defendant Deck’s trial constituted harmless errors, in favor of its own determination that such statements were actually prejudicial. As explained below, I find four major missteps in the Majority’s opinion. First, the Majority reads Davis v. Ayala to hold that a federal habeas court’s finding that a state trial court error was prejudicial under Brecht dispenses with AED-PA’s requirement that the federal habeas court must also find that the state court applied “well-established” Supreme Court precedent in an “unreasonable” manner when it found the same error harmless (a “Cteproim/AEDPA” analysis). See Op. at 985-86. This conclusion is illogical because Brecht requires only a finding by a federal court that (in its view) an error was not harmless — without any deference to, or evaluation of, the reasonableness of a prior state court determination. Under Chapman /AEDPA, conversely, we must accept a state court’s prior harmless error determination unless it involved such an “unreasonable” application of Supreme Court precedent that “no fairminded jurist” could agree with it. See Davis v. Ayala, — U.S. —, 135 S.Ct. 2187, 2199, 192 L.Ed.2d 323 (2015). Thus, though a Chapman/AEDPA finding would necessarily mean that a trial error was harmful (and thus also satisfy Brecht) the contrary is not necessarily true. Indeed, the panel Majority’s test got it precisely backwards. The Majority did so by committing its second error: It read Justice Alito’s statement that “the Brecht test subsumes the limitations imposed by AEDPA,” id. at 2199, to mean that Brecht eliminated, rather than incorporated, AEDPA deference. But it is hard to see how that can be correct when the Brecht standard was developed in 1993 — three years" }, { "docid": "22911950", "title": "", "text": "“contradicts the governing law set forth in [the Supreme] Court’s cases” ’ or (2) “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a [different] result.” Id. at 405-06,120 S.Ct. 1495. A state-court decision “involve[s] an unreasonable application” of clearly established federal law if the state court (1) “identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the particular ... case”; or (2) “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407, 120 S.Ct. 1495. The Supreme Court addressed AEDPA’s factual review provisions in Miller-El v. Cockrell. There, the Supreme Court interpreted § 2254(d)(2) to mean that “a decision adjudicated on the-merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Yet “deference does not imply abandonment or abdication of judicial review.” Id. In other words, “[d]eference does not by definition preclude relief.” Id. Thus a federal habeas court can “disagree with a state court’s credibility determination.” Id.; see also Wiggins v. Smith, 539 U.S. 519, 123 S.Ct. 2527, 2539, 156 L.Ed.2d 471 (2003) (rejecting state court’s factual determination under § 2254(e)(1) and 2254(d)(2)). Despite the Supreme Court’s pronouncements in Miller-El and Wiggins, a comprehensive interpretation of AEDPA’s factual review scheme has yet to emerge from the federal courts. Specifically, the relationship between the standards enunciated in § 2254(d)(2) and § 2254(e)(1) remains unclear. See Green v. White, 232 F.3d 671, 672 n. 3 (9th Cir.2000). On their face, we discern little material difference between a reasonableness determination and a presumption of correctness as they express the same fundamental principle of deference to state court findings. Courts have tended to lump the two provisions together as generally indicative of the" }, { "docid": "11657815", "title": "", "text": "petition. B. Ineffective Assistance of Counsel 1. Standard of Review In a habeas corpus appeal, we review findings of fact for clear error and issues of law de novo using the same standards as the district court. Because Anderson’s petition for habeas relief was filed in 2001, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) governs this appeal. Under the AEDPA, we cannot grant habeas relief to a state prisoner “with respect to any claim that was adjudicated on the merits in State court proceedings” unless the state decision “was contrary to, or involved an unreasonable application of, clearly established [f]ederal law.” The Supreme Court has recently offered direction for courts assessing “unreasonable applications” of federal law. In Williams v. Taylor, the Court instructed lower courts to ask whether “the state court’s application of clearly established federal law was objectively unreasonable.” The Court emphasized, and we have since reiterated, the “critical distinction” between an “unreasonable application” of federal law and an erroneous or incorrect application of federal law. “[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly ... that application must also be unreasonable.” In this circuit, a federal habeas court reviews “only a state court’s ‘decision,’ and not the written opinion explaining that decision.” 2. Discussion The “clearly established federal law” applicable to Anderson’s claim is the familiar two-prong test of Strickland v. Washington. Under Strickland, Anderson must demonstrate both that his attorney’s performance was deficient (“cause”) and that this deficiency prejudiced his defense (“prejudice”). Anderson contends that both his trial and appellate counsel were constitutionally ineffective: trial counsel in failing to investigate, interview eyewitnesses, and call exculpatory witness Arthur Gray to testify; appellate counsel in failing to uncover and argue both trial counsel’s errors and Arthur Gray’s exculpatory testimony. a. Cause To establish a threshold deficient performance, Anderson must first demonstrate that “counsel’s representation fell below an objective standard of reasonableness.” Courts “judge the reasonableness of counsel’s challenged conduct on the facts of the particular case," }, { "docid": "23442028", "title": "", "text": "decision is contrary to Federal law if “the state court arrives at a conclusion opposite to that reached by th[e Supreme] Court on a question of law,” or “the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court].” Williams, 529 U.S. at 405, 120 S.Ct. 1495. Thus, the “contrary to” prong requires a direct and irreconcilable conflict with Supreme Court precedent. Second, § 2254(d)(1) provides that a state-court decision might offend clearly established Federal law in a manner actionable under AEDPA where the state-court decision is an unreasonable application of Supreme Court precedent. A state-court decision is an “unreasonable application” of Supreme Court precedent if “the state court identifies the correct governing legal rule from th[e Supreme] Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case,” or “the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407, 120 S.Ct. 1495. It is not, however, “an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by th[e Supreme] Court.” Richter, 131 S.Ct. at 786 (alteration omitted). Because, like state courts, we have responsibility for direct review of federal criminal appeals, we may have developed our own body of constitutional law independent of the Supreme Court. A state-court decision that we determine to be inconsistent with our cases is not necessarily “objectively unreasonable” and therefore an unreasonable application of clearly established Federal law “as determined by the Supreme Court.” Id.; see also Marshall v. Rodgers, 133 S.Ct. at 1450-51 (noting the division of authority between the state court and the federal circuit court, expressing no view on the merits of the underlying claim, and reversing the grant of habeas). The deferential standard imposed under AED-PA cloaks a state court’s determination with reasonableness, so long as" }, { "docid": "23239630", "title": "", "text": "to prove beyond a reasonable doubt the absence of heat of passion in order to obtain a murder conviction.” Id. If this Court’s decision in Lofton were controlling, Mr. Bland might well be entitled to relief. Under the AEDPA standard of review, however, a habeas petition shall not be granted unless the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1) (emphasis added). The decisions of lower federal courts applying Supreme Court precedent are not determinative, see Williams, 529 U.S. at 406, 120 S.Ct. 1495, and in this case the lower federal courts have in fact divided as to the proper scope of Mullaney after Patterson. Compare Lofton, 776 F.2d at 920-21, with Molina-Uribe, 853 F.2d at 1203-04. Because the OCCA’s decision reasonably applies the correct legal rule from Mullaney, as the Supreme Court construed that rule in Patterson, the OCCA decision is neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent, notwithstanding the interpretation of that rule in this Circuit. 3. Prosecutorial Misstatements We turn now to Mr. Bland’s argument that the prosecutors misstated the jury instruction regarding the lesser included offense, and thus violated due process. To prevail on a claim based on improper remarks by the prosecutor, a petitioner generally must demonstrate that the remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); see also Le v. Mullin, 311 F.3d 1002, 1013, 1018 (10th Cir.2002) (requiring a showing that the trial was “fundamentally unfair” where the prosecutor’s comments appeared to contradict the jury instructions). Because the OCCA considered this claim, AEDPA standards of review apply, and we may reverse only if the OCCA’s decision was “legally or factually unreasonable.” Gip-son v. Jordan, 376 F.3d 1193, 1197 (10th Cir.2004) (internal quotation marks omitted). During closing argument, the prosecution argued that the jury need not consider the lesser included offense of first-degree" }, { "docid": "4494218", "title": "", "text": "trial right is intended to prevent oppressive pretrial incarceration, minimize the accused’s anxiety, and limit the possibility that the passage of time will impair the accused’s ability to mount a defense. Id. The latter concern is the most serious one. Id. As a general rule, the defendant bears the burden of alleging and proving specific ways in which the delay attributable to the sovereign unfairly compromised his ability to defend himself. See United States v. Aguirre, 994 F.2d 1454, 1455 (9th Cir.1993). In aggravated cases, involving grossly excessive delay, prejudice may be presumed despite the defendant’s inability to identify particular testimony or evidence that has become unavailable due to the passage of time. Doggett, 505 U.S. at 655-56. B. The AEDPA Standard. Because this habeas petition was filed after April 24, 1996, the AEDPA controls. Lindh v. Murphy, 521 U.S. 320, 322, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Thus, we may grant relief only if the state court proceeding (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). Under Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), a state court decision is considered contrary to Supreme Court precedent only if it either applies a test that is inconsistent with one announced by the Court or reaches the opposite conclusion on materi ally indistinguishable facts. Id. at 405-06. That branch of the AEDPA standard is only marginally involved in this appeal— the state court correctly deduced that Barker constituted the controlling Supreme Court precedent—and so we do not dwell upon it. That leaves the “unreasonable application” clause. A decision falls victim to that clause if the state court applies the correct legal standard in an objectively unreasonable manner, unreasonably extends a Supreme Court precedent to an inappropriate context, or fails to extend such" }, { "docid": "14975862", "title": "", "text": "that the nature of the review has been drastically changed by the Anti-Terrorism and Effective Death Penalty Act of 1996. 28 U.S.C. § 2254(d) (1994 ed., Supp.2001) (AEDPA) and the decisions of the Supreme Court of the United States interpreting that statute. The principles established by these authorities are: The federal court may not grant relief on any claim, unless the state court decision on the law controlling that claim was contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States. In applying this standard: A. Decisions of lower federal courts may not be considered. B. Only the holdings of the Supreme Court, rather than its dicta, may be considered. C. The state court decision may be overturned only if: 1. It “[applies] a rule that contradicts the governing law set forth in [Supreme Court of the United States] cases,” or; 2. the state-court decision “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent;” or 3. “the state court identifies the correct governing legal rule from [the Supreme] Court’s cases but unreason ably applies it to the facts of the particular state prisoner’s case;” or 4. the state court “either unreasonably extends a legal principle from [a Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” D. Throughout this analysis the federal court may not merely apply its own views of what the law should be. Rather, to be overturned, a state court’s application of Supreme Court of the United States precedent must also be objectively unreasonable. That is to say, that “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” “[A]n unreasonable application of federal law is different from an incorrect or erroneous application of federal law.” E. Findings" }, { "docid": "4742635", "title": "", "text": "biased juror who should have been dismissed for cause requires reversal of the conviction.”); Strickland, 466 U.S. at 694, 104 S.Ct. 2052. As explained above, I believe that de novo review is appropriate in this case. However, even applying AEDPA’s deferential standard, I believe that the Michigan Court of Appeals unreasonably applied clearly established Supreme Court precedent when it held that Holder had not shown that his counsel’s performance was objectively unreasonable. For these reasons, I would grant Holder’s petition. . In responding to my argument for de novo review, the majority cites Harris v. Stovall, 212 F.3d 940 (6th Cir.2000), and three nonbinding cases from other circuits for the proposition that a federal habeas court should review the state court's conclusion and not its reasoning. Maj. Op. at 341-42. Harris embraced an approach that came to be known as \"modified AEDPA deference,” under which this court will conduct an independent review of the applicable facts and law but grant the writ only if the state court's ultimate decision was contrary to or an unreasonable application of federal law. See Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir.2005). Modified AEDPA deference applies only in cases where there is little or no reasoning to review. See Harris, 212 F.3d at 943 (evaluating a state court’s denial of relief \"when there is no state court decision articulating its reasons”). Extending that approach to cases in which the state court has explained its reasoning would be in tension with Supreme Court precedent. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (\"Avoiding these pitfalls [of being ‘contrary to' clearly established Supreme Court precedents] does not require citation of our cases — indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.”) (second emphasis added); see also Cornwell v. Bradshaw, 559 F.3d 398, 405 (6th Cir.2009) (\"A state court decision on the merits is contrary to clearly established Supreme Court precedent only if the reasoning or the result of the decision contradicts" }, { "docid": "21624317", "title": "", "text": "is that question which we now address. D. Unreasonable Application Test The law is not yet fully formed on what it means for a state court to act unreasonably in light of clearly established federal law as defined by the Supreme Court. In Williams, the high Court held that a decision may be unreasonable because the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Williams, 529 U.S. at 407-08, 120 S.Ct. 1495. In Williams the narrow issue was “the reasonableness of the application of a legal principle that clearly governed the set of facts presented.” Lurie v. Winner, 228 F.3d 113, 129 (2d Cir.2000). The case before us, unlike Williams, involves a somewhat different question. We are here required to consider the reasonableness of the state court’s failure to extend the Supreme Court’s general standard for the admissibility of identification testimony to “situations materially different from those considered in the high court’s precedents.” Id. As we noted in Lurie, the Supreme Court declined in Williams to decide this question of “whether an unreasonable refusal to extend a constitutional doctrine is sufficient to warrant federal habeas relief under AEDPA.” Id. Nor did Ramdass v. Angelone, 530 U.S. 156, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000), a Supreme Court decision which followed Williams, fully resolve the issue. Under the circumstances, in Lurie, we assumed arguendo “an unreasonable refusal to extend a Supreme Court precedent to cover other situations would satisfy § 2254(d)(1)” and permit habeas review. We, nevertheless, concluded that the state court’s decision was not in that case unreasonable. Lurie, 228 F.3d at 130. In the present case, we address the issue left open in Ramdass, Williams, and Lurie. We believe that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed. Accordingly, we face two questions. One, must the Manson holding that due process requires the exclusion of eyewitness identification that entails a very" }, { "docid": "21800095", "title": "", "text": "No. S004616 (Cal.), Exh. 98, p. 1. Accordingly, whenever his grandparents “spanked or disciplined” the kids, Pinholster “always got the worst of it.” Ibid. Pinholster was mostly unsupervised and “didn’t get much love,” because his mother and stepfather were always working and “were more concerned with their own lives than the welfare of their kids.” Id., at 2. Neither parent seemed concerned about Pinholster’s schooling. Finally, Pinholster’s aunt once saw the children mixing flour and water to make something to eat, although “[m]ost meals consisted of canned spaghetti and foods of that ilk.” Id,., at 1. Given what little additional mitigating evidence Pinholster presented in state habeas, we cannot say that the California Supreme Court’s determination was unreasonable. Having already heard much of what is included in the state habeas record, the jury returned a sentence of death. Moreover, some of the new testimony would likely have undercut the mitigating value of the testimony by Pinholster’s mother. The new material is thus not so significant that, even assuming Pinholster’s trial counsel performed deficiently, it was necessarily unreasonable for the California Supreme Court to conclude that Pinholster had failed to show a “substantial” likelihood of a different sentence. Richter, 562 U. S., at 112 (citing Strickland, 466 U. S., at 693). 3 As with deficiency, the Court of Appeals found this case to be “materially indistinguishable” from Terry Williams and Rompilla v. Beard, 545 U. S. 374 (2005). 590 F. 3d, at 684. But this Court did not apply AEDPA deference to the question of prejudice in those cases; each of them lack the important “doubly deferential” standard of Strickland and AEDPA. See Terry Williams, 529 U. S., at 395-397 (reviewing a state-court decision that did not apply the correct legal standard); RompiUa, supra, at 390 (reviewing Strickland prejudice de novo because the state-court decision did not reach the question). Those cases therefore offer no guidance with respect to whether a state court has unreasonably determined that prejudice is lacking. We have said time and again that “an unreasonable application of federal law is different from an incorrect application of federal" }, { "docid": "23038691", "title": "", "text": "evidence caused him prejudice because Abundiz’s credibility was so thoroughly destroyed that the withheld convictions would not have mattered. The court went on to note that the alleged residential burglary deal was speculative and that any evidence indicating a deal was cumulative because the jury already knew Abundiz received benefits for his testimony. Barker filed a federal petition for a writ of habeas corpus in the district court, which reviewed the Washington Court of Appeals’ decision and denied relief. Discussion I. Standards and Scope of Review In a habeas corpus petition, two standards of review are at play. See, e.g., Lambert v. Blodgett, 393 F.3d 943, 964-65 (9th Cir.2004). The first standard is the straightforward de novo standard we employ to evaluate the district court’s decision to deny the petition. E.g., Beardslee v. Woodford, 358 F.3d 560, 568 (9th Cir.2004) (as amended). The standard that governs review of the state court’s decision is established by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which prohibits a federal court from granting habeas relief “with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Before we can apply AEDPA’s standards, we must identify the state court decision that is appropriate for our review. When more than one state court has adjudicated a claim, we analyze the last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Avila v. Galana, 297 F.3d 911, 918 (9th Cir.2002) (“In determining whether a state court decision is contrary to federal law, we look to the state’s last reasoned decision.”). Here, the last reasoned state decision is the Washington Supreme Court’s denial of discretionary review of the PRP dismissal. The Court, through its Commissioner, issued a seven-page order that explained in detail why review was denied and specifically examined the substance of Barker’s Brady" }, { "docid": "11812843", "title": "", "text": "anxiety and concern and loss of certain prison benefits and privileges as an adequate demonstration of prejudice. For the reasons that follow, we agree with the district court’s conclusion that the state court neither contravened nor unreasonably applied clearly-established federal law when it denied Good-rum’s speedy trial claim. The right to a speedy trial is guaranteed by the Sixth Amendment and applies to state criminal proceedings through the Fourteenth Amendment. U.S. Const, amend. VI; Klopfer v. North Carolina. A violation of the speedy trial right, if found, requires dismissal of the indictment. See Strunk v. United States. In Barker, the Supreme Court prescribed several factors to be considered when evaluating a speedy trial claim: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to speedy trial, and (4) prejudice to the defendant. None of these factors is either necessary or sufficient to find a speedy trial violation; “[rjather, they are related factors and must be considered together with such other circumstances as may be relevant.” The speedy trial inquiry therefore involves a “difficult and sensitive” balancing of these factors under the particular circumstances of a given case. Because the state appellate court properly identified the Barker test as the framework for analyzing Goodrum’s speedy trial claim, AEDPA limits our focus to the objective reasonableness of the result of the state court’s balancing of the Barker factors under the facts in Good-rum’s case. See Santellan v. Cockrell. Nonetheless, to facilitate our evaluation of the reasonableness of the state court’s decision, we will conduct a limited review of the state court’s analysis of each Barker factor. We keep in mind, however, the fact that the state court’s preliminary conclusions regarding one or more of the factors, even if contrary to or objectively unreasonable in light of controlling Supreme Court precedent, are insufficient to grant habeas relief, so long as we find the ultimate decision reached by the state court not objectively unreasonable. Cf. Jackson v. Ray. A. Length of the delay The first Barker factor, the length of the delay, consists of" }, { "docid": "6380961", "title": "", "text": "prejudicial impact of constitutional error in a state-court criminal trial under the ‘substantial and injurious effect’ standard set forth in Brecht ... whether or not the state appellate court recognized the error and reviewed it for harmlessness under the [Chapman] standard.” Fry, 551 U.S. at 121-22, 127 S.Ct. 2321 (noting that “it certainly makes no sense to require formal application of both tests (AEDPA/ Chapman and Brecht) when the latter obviously subsumes the former”). And “where an error is harmful under Brecht, any state court decision declaring it harmless must have unreasonably applied Chapman. As a result, any error satisfying Brecht will also satisfy AEDPA’s deference requirements.” Bauberger v. Haynes, 632 F.3d 100, 104 (4th Cir.2011). “Federal habeas courts must always review constitutional errors in state trials under Brecht, but they need not debate whether a state court’s harmless error determination also unreasonably applied Chapman.” Id. Applying the Brecht standard, we conclude that the admission of Guzman’s in-court identification, even if error, was harmless. As the state court observed, there was abundant other evidence presented on the issue of Fowler’s guilt, including the testimony of several acquaintances that Fowler admitted that he committed the crime and provided details about the shootings and the murder weapon that were corroborated by the witnesses and forensic evidence from the motel that night. 4. For the foregoing reasons, we hold that the state court’s rejection of Fowler’s due process claim was not contrary to or an unreasonable application of the governing Supreme Court precedents. In the alternative, we hold that any such error was harmless under Brecht. IV. We turn now to Fowler’s motion, filed for the first time on appeal, which he styles as a Motion for Appointment of Qualified and Independent Counsel. Relying upon our decision in Juniper v. Davis, 737 F.3d 288 (4th Cir.2013), and the Supreme Court’s decision in Martinez v. Ryan, — U.S.-, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), Fowler asks that that we defer resolution of his habeas appeal, designate his current counsel to be “Martinez counsel,” and remand this case to the district court to allow" }, { "docid": "23128194", "title": "", "text": "a lower federal court on an issue that the Supreme Court has not addressed. Thus, in certain cases it may be appropriate to consider the decisions of inferior federal courts as helpful amplifications of Supreme Court precedent. We believe this interpretation is supported by AEDPA’s legislative history, which indicates Congress sought to preserve independent review of federal constitutional claims, but to curtail its scope by mandating deference to reasonable state court decisions. Explaining the “unreasonable application” provision, Senator Hatch, the bill’s primary sponsor, stated: What does this mean? It means that if the State court reasonably applied Federal law, its decision must be upheld. Why is that a problematic standard? After all, Federal habeas review exists to correct fundamental defects in the law. If the State court decision has reasonably applied Federal law it is hard to say that a fundamental defect exists. 141 Cong. Rec. S7848 (daily ed. June 7, 1995) (statement of Sen. Hatch). Another of the bill’s sponsors, Senator Specter, observed that “under the bill deference will be owed to State courts’ decisions on the application of Federal law to the facts. Unless it is unreasonable, a State court’s decision applying the law to the facts will be upheld.” 142 Cong. Rec. S3472 (daily ed. Apr. 17, 1996) (statement of Sen. Specter). These and other statements from the legislative history persuade us that Congress intended to restrict habeas relief to cases in which the state court judgment rested upon an objectively flawed interpretation of Supreme Court precedent. See also H.R. Conf. Rep. No. 104-518, at 111 (1996) (stating that AED-PA “requires deference to the determinations of state courts that are neither ‘contrary to,’ nor an ‘unreasonable application of,’ clearly established federal law”). As one commentator accurately recounts, in both houses of Congress section 2254(d) “was called a ‘deference’ standard by every member who spoke on the question, opponents as well as supporters.” Kent S. Scheidegger, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum. L.Rev. 888, 945 (1998). Regarding the objective nature of the standard, we believe our reading comports with pre-AEDPA law in this area, which" }, { "docid": "23128186", "title": "", "text": "870 (“[According each term its most natural (even if not its only) meaning, results in an interpretation of [AEDPA] most faithful to the plain purpose of the statute.”). As noted, the Fourth Circuit’s interpretation of AEDPA attempts to catalogue the situations in which a result might be “contrary to” or an “unreasonable application of’ a higher court’s precedent. See 143 F.3d at 869-70. The Green court held that a decision is “contrary to” precedent when “either through a decision of’pure law or the application of law to facts indistinguishable in any material way from those on the basis of which the precedent was decided, that decision reaches a legal conclusion or a result opposite to and irreconcilable with that reached in the precedent that addresses the identical issue.” Id. at 870. The court also held that a decision constitutes an “unreasonable application of’ the relevant law when it unjustifiably extends the precedent’s legal principle to a new context, fails to apply the principle in a context where such failure is “unreasonable,” or identifies the correct principle but unreasonably applies it to the facts before it (assuming those facts are not so different as to “constitute a new context for consideration of the principle’s applicability”). Id. Although we find this analysis insightful, we decline to adopt it as the basis for scrutinizing state court judgments under AEDPA. We believe that in practice, it will be difficult for a court to determine which, if any, of the foregoing scenarios is implicated in the case before it. In our view, a better analytical framework is provided by the First Circuit in O’Brien, which directs federal habeas courts first to identify whether the Supreme Court has articulated a rule specific enough to trigger “contrary to” review; and second, only if it has not, to evaluate whether the state court unreasonably applied the relevant body of precedent. See 145 F.3d at 24-25. Consequently, we hold that the “contrary to” provision of AEDPA requires a federal habeas court first to identify the applicable Supreme Court precedent and determine whether it resolves the petitioner’s claim. Like the" }, { "docid": "23585960", "title": "", "text": "S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The Brecht standard was further qualified in O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995), which held that “where the record is so evenly balanced [on the issue of whether the error had a substantial and injurious effect] that a conscientious judge is in grave doubt as to the harmlessness of an error,” id. at 437, 115 S.Ct. 992, “the petitioner must win,” id. at 436, 115 S.Ct. 992. Thus, until the AEDPA the “substantial and injurious effect” test governed habeas review of constitutional “trial-type” errors. The AEDPA, however, amended § 2254(d) to decree that the writ shall not issue unless the state court’s affirmance of the conviction amounted to an “unreasonable application” of clearly established Supreme Court precedent. On direct review, the state appellate court would determine whether the claimed error was harmless under Chapman’s “unreasonable beyond a reasonable doubt” standard. The question federal habeas courts must now address when assessing the harmlessness of constitutional error is what the standard is for determining whether the state court’s decision resulted from an “unreasonable application” of Chapman. The district court, recognizing the conundrum, reviewed the Michigan Supreme Court’s determination under both the Chap man and the Brecht /O’Neal standards and found both that the extraneous information had a substantial and injurious effect on the jury’s verdict, and that the Michigan Supreme Court had unreasonably applied Supreme Court precedent by concluding that the error had been harmless. One month after the district court issued its opinion in this case, a different judge of the Eastern District of Michigan concluded that the AEDPA had abrogated the Brecht /O’Neal standard and required the habeas court to assess whether the state court’s application of the Chapman standard was unreasonable. See Barker v. Yukins, 993 F.Supp. 592, 602 n. 7 (E.D.Mich.1998). We have found no opinions from our sister circuits addressing the appropriate standard to now apply when faced with this question. Accordingly, we write on a clean slate. The clear language of" }, { "docid": "23128229", "title": "", "text": "2254(d)(1) in O’Brien is inconsistent with the text and legislative history of AEDPA. First, I do not think that it is consistent with a common sense understanding of when a state court decision is “contrary to” clearly established Supreme Court precedent. Under O’Brien, a federal habeas court would be able to grant relief under § 2254(d)(1) solely because it disagreed with the state court’s application of the appropriate Supreme Court precedent, even though it was a reasonable interpretation of how the Supreme Court would have applied the precedent. I do not think such a reasonable interpretation could fairly be denominated “contrary to” clearly established Supreme Court precedent. As the majority itself recognizes in the context of the “unreasonable application of’ clause, § 2254(d)(1) “does not empower a habeas court to grant the writ merely because it disagrees with the state court’s decision, or because, left to its own devices, it would have reached a different result.” Op. at 889 (quoting O’Bnen, 145 F.3d at 25). Furthermore, Congress’s express intent in enacting AEDPA demonstrates that the reduced deference O’Brien permits is inappropriate. That § 2254(d)(1) requires a habeas court to give deference to reasonable state court decisions where the Supreme Court has not spoken directly to an issue is evident from Senator Hatch’s explication of the provision: What does this mean? It means that if the State court reasonably applied Federal law, its decision must be upheld. Why is that a problematic standard? After all, Federal habeas review exists to correct fundamental defects in the law. If the State court decision has reasonably applied Federal law it is hard to say that a fundamental defect exists. 141 Cong. Rec. S7848 (daily ed. June 7, 1995). Similarly, Senator Specter recognized that “under the bill deference will be owed to State courts’ decisions on the application of Federal law to the facts. Unless it is unreasonable, a State court’s decision applying the law to the facts should be upheld.” 142 Cong. Rec. S3742 (daily ed. April 17, 1996). Given these statements, I do not think it is appropriate to apply plenary review to" }, { "docid": "18123491", "title": "", "text": "at 25, 94 S.Ct. 188, Mr. Jackson fails to establish any grounds for us to find prejudice as to any other protected interest. This is not to say, however, that every case necessarily requires a finding of prejudice. See id. at 27, 94 S.Ct. 188. But we have held that “[w]hile prejudice is not essential to a violation, there is ... reluctance to find a speedy trial deprivation where there is no prejudice.” United States v. Brown, 600 F.2d 248, 254 (10th Cir.1979). Most importantly, there is no clearly established Supreme Court law mandating a balancing that reaches a result contrary to the OCCA’s decision. Therefore, we cannot conclude that the OCCA’s decision to deny Mr. Jackson’s Sixth Amendment claim is objectively unreasonable in light of clearly established Supreme Court precedent. V. CONCLUSION Because we cannot conclude that the OCCA’s ultimate balancing of the four Barker factors was objectively unreasonable in light of clearly established Supreme Court precedent, we AFFIRM. Appellant’s pro se motion “to re-brief the appeal if necessary” is denied. . We note that the Supreme Court published its decision in Wiggins after the completion of Mr. Jackson’s OCCA appeal. AEDPA \"limit[s] our analysis to the law as it was clearly established by [Supreme Court] precedents at the time of the state court decision.\" Wiggins, 539 U.S. at 520, 123 S.Ct. 2527 (internal quotations omitted) (emphasis added). We cite Wiggins, however, not as an example of clearly established law relating to the substance of the speedy trial claim, but for guidance on the proper standards to apply on habeas review under AEDPA. See id. at 522, 123 S.Ct. 2527 (holding that a habeas court can cite Supreme Court precedent issued after the relevant state court decision so long as it \"made no new law in resolving” the underlying claim). . In Barker, the Court characterized the right to a speedy trial as \"a more vague concept than other procedural rights,” which it approaches \"on an ad hoc basis.” Barker, 407 U.S. at 521, 530, 92 S.Ct. 2182. Later rulings by the Court, however, clearly establish that the four" }, { "docid": "23555726", "title": "", "text": "to the extent the decision rests on factual grounds, we review only if the decision was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. We see no unreasonable factual determination in the Commissioner’s opinion, which rests on what Pettis said in his declaration: when first asked by police about the shooting, Pettis said: “I told them I didn’t know anything. I didn’t want to cooperate because I had a probation warrant out. Also, I didn’t really like to talk with the police because I didn’t trust them.” Thus, the Commissioner’s statement that “as Pettis admits, he initially misled the police about his knowledge of the incident” is technically correct. But the question before us is whether the state court’s application of Strickland was “unreasonable.” The Su preme Court’s precedent says that we cannot lightly so conclude, but can only determine that there has been an “unreasonable application” of federal law if the state court decision is “objectively unreasonable” which means something more than merely “incorrect or erroneous.” Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1173-74, 155 L.Ed.2d 144 (2003). This standard is properly deferential because of the important role that state courts play in applying federal constitutional guarantees and because of federalism concerns that are evoked when we assess whether a state court system holds a state prisoner in violation of the federal constitution. Even under the narrow constraint of our review under AEDPA and the Supreme Court’s precedent, we conclude here that there was an unreasonable application of Strickland, an application “objectively unreasonable” that we believe would be soundly decried by any reasonable defense counsel. We are left with the unmistakable conclusion that the Washington State Supreme Court, through its Commissioner, did not properly address the impact of Clower’s failure to interview Pettis or call him as a witness. Most striking is the obvious impact that Pettis’s testimony could have had on the jury’s determination of whether Riley was the “first aggressor.” The defense in this case was premised on the factual theory that Jaramillo" } ]

[ { "docid": "20958650", "title": "", "text": "by the Defendants — making them “holders” — by indorsement and physical delivery of the notes, under NYUCC § 3-202(1) (Id. ¶¶ 56-58). As the Trustee sees it, the written assignment of the Individual Lender Notes was not a valid manner by which the Defendants could acquire ownership of those Individual Lender Notes, rendering Defendants’ Consolidated Notes and Consolidated Mortgages a nullity (See id.). The Trustee’s formulaic application of the NYUCC is not supported by the case law regarding standing to foreclose a mortgage. The majority — and it is a substantial majority — position of both federal and state courts applying New York law is that “[a] plaintiff has standing to bring a mortgage foreclosure action ’where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced.’” 1077 Madison St., LLC v. Smith, No. 13-CV-7182 (DLI), 2015 U.S. Dist. LEXIS 135025, at *15 (E.D.N.Y. Aug. 27, 2015), aff'd, 2015 WL 5793427, 2015 U.S. Dist. LEXIS 134173 (E.D.N.Y. Sept. 30, 2015) (emphasis added) (quoting Collymore, 68 A.D.3d at 753, 890 N.Y.S.2d 578); Wells Fargo, N.A. v. Landi, No. 13-CV-5822, 2015 WL 5655810, at *2-3, 2015 U.S. Dist. LEXIS 127786, at *8 (E.D.N.Y. Aug. 14, 2015) (same); U.S. Bank v. Squadron VCD, LLC, No. 10 CV 5484(VB), 2011 WL 4582484, at *6-7, 2011 U.S. Dist. LEXIS 114580, at *19 (S.D.N.Y. Oct. 3, 2011) (same); Greystone Bank v. Skyline Woods Realty, LLC, 817 F.Supp.2d 57, 63 (N.D.N.Y.2011) (same); In re Idicula, 484 B.R. 284, 288 (Bankr.S.D.N.Y.2013) (same); In re Lippold, 457 B.R. 293, 296-97 (Bankr.S.D.N.Y,2011) (same); Nationstar Mortg., LLC v. Catizone, 127 A.D.3d 1151, 1152, 9 N.Y.S.3d 315 (2d Dep’t 2015) (same); Bank of America, N.A. v. Kyle, 129 A.D.3d 1168, 1168-69, 13 N.Y.S.3d 253 (3d Dep’t 2015) (same); Homecomings Fin., LLC v. Guldi, 108 A.D.3d 506, 507-08, 969 N.Y.S.2d 470 (2d Dep’t 2013) (same); One Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532 (2d Dep’t 2011) (same); Citimortgage, Inc. v. Stosel, 89 A.D.3d 887, 888, 934 N.Y.S.2d 182 (2d Dep’t" } ]

[ { "docid": "1848800", "title": "", "text": "became a concierge doctor to the rich and famous in the Hamptons. Forest Park had no prior knowledge of “Royal Pains,” did not consent to its production, and received no compensation from USA Network for the use of its idea for the show. Prior Proceedings Forest Park Pictures, located in California, and the Christensens, residents of California and Toronto, Canada, brought a diversity action against USA Network and Universal Television Network, a New York corporation, for breach of contract. USA Network moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the Complaint on the grounds that the Copyright Act preempted the claim and that the contract was too vague to be enforced. The district court held the claim preempted and dismissed the Complaint without addressing the vagueness argument. Forest Park Pictures v. Universal Television Network, Inc., No. 10 Civ. 5168(CM), 2011 WL 1792587, at *3, 2011 U.S. Dist. LEXIS 50081, at *9 (S.D.N.Y. May 10, 2011). Forest Park timely appealed the dismissal. DISCUSSION This appeal presents two questions: first, whether Forest Park’s breach of implied contract claim is preempted by the Copyright Act; and second, if such a claim is not preempted, whether Forest Park adequately pleaded a claim under state law. We hold that Forest Park’s claim is not preempted and that the Complaint pleads an enforceable contract under state law that survives a motion to dismiss. We review de novo a district court’s dismissal of a complaint under Rule 12(b)(6), accepting all of the complaint’s factual allegations as true and drawing all reasonable inferences in the plaintiffs’ favor. Interpharm, Inc. v. Wells Fargo Bank, Nat'l Ass’n, 655 F.3d 136, 141 (2d Cir.2011). The complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). I. Preemption We first" }, { "docid": "9285977", "title": "", "text": "complaint, Certificate, and RJI. Specifically, Cohen alleges that the defendants violated 15 U.S.C. § 1692e, which prohibits false, deceptive, or misleading representations made in connection with collecting a debt, and 15 U.S.C. § 1692g(a), which requires debt collectors to provide debtors with the name of the \"creditor to whom the debt is owed\" within five days of an \"initial communication with a consumer in connection with the collection of any debt.\" The defendants moved to dismiss Cohen's complaint under Federal Rule of Civil Procedure 12(b)(6). On March 24, 2017, the district court dismissed Cohen's complaint, concluding that Cohen had failed to state a claim upon which relief can be granted because the \"enforcement of a security interest through foreclosure proceedings that do not seek monetary judgments against debtors\" does not qualify as debt collection within the scope of the FDCPA. Cohen v. Ditech Fin. LLC , No. 15-CV-6828 (LDW), 2017 WL 1134723, at *3, 2017 U.S. Dist. LEXIS 43443 (E.D.N.Y. Mar. 24, 2017). The district court reasoned that because \"Green Tree elected to commence an action to foreclose on the mortgage and the 'communications' at issue were made in the context of enforcing its security interest ... there was no attempt to enforce a debt actionable under the FDCPA.\" Id. Cohen then timely filed this appeal. DISCUSSION I. Standard of Review \"We review de novo a district court's grant of a defendant's motion to dismiss.\" City of Pontiac Gen. Emps' Ret. Sys. v. MBIA, Inc. , 637 F.3d 169, 173 (2d Cir. 2011). To survive a motion to dismiss, a complaint \"must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.\" Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). \"A complaint is also deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are integral to the complaint.\" L-7 Designs, Inc. v. Old Navy, LLC , 647 F.3d 419, 422 (2d Cir. 2011)" }, { "docid": "17406491", "title": "", "text": "F.Supp.2d 607, 614 n. 37 (S.D.Tex.2009); Kinnison v. City of San Antonio, No. SA-08-CA-421-XR, 2009 WL 578525, at *2 (W.D.Tex. Mar. 5, 2009); Hobbs v. City of Dallas, No. 3:06-CV-2106-K, 2007 WL 846519, at *1 (N.D.Tex. Mar. 20, 2007) (Kinkeade, Dist. J.). In deciding a Rule 12(c) motion, the Court only may consider allegations in the pleadings and incorporated exhibits, including a Rule 7 reply and the defendant’s answer. See Fed.R.Civ.P. 7(a), 10(c); Hoffman v. L & M Arts, No. 3:10-CV-953-D, 2011 WL 3567419, at *9 (N.D.Tex. Aug. 15, 2011) (Fitzwater, C.J.) (considering attachment to answer in deciding Rule 12(c) motion); Forgan v. Howard County, No. 1:04-CV-233-C, 2005 WL 233808, at *6 (N.D.Tex. Feb. 1, 2005) (Cummings, Dist. J.) (considering Rule 7 reply and attached exhibits in determining Rule 12(c) motion on the basis of qualified immunity). The standard for dismissal on the pleadings under Rule 12(c) is the same as that for dismissal for failure to state a claim under Rule 12(b)(6). See Ackerson v. Bean Dredging, LLC, 589 F.3d 196, 209 (5th Cir.2009). Federal Rule of Civil Pro cedure 12(b)(6) authorizes the dismissal of a complaint that fails “to state a claim upon which relief can be granted.” This rule must, however, be interpreted in conjunction with Rule 8(a), which sets forth the requirements for pleading a claim for relief in federal court. Rule 8(a) calls for “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-82, 129 S.Ct. 1937, 1949-51, 173 L.Ed.2d 868 (2009) (applying Rule 8(a) and plausibility standard to Rule 12(b)(6) motion raising qualified-immunity defense); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 122 5. Ct. 992, 152 L.Ed.2d 1 (2002) (holding Rule 8(a)’s simplified pleading standard applies to most civil actions). As a result, “[a] motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.” Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982). The Court must accept as true all well pleaded, nonconclusory" }, { "docid": "18078781", "title": "", "text": "Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and “allow[ ] the court to draw the reasonable inference that the defendant is .liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Finn v. Anderson, 592 Fed.Appx. 16, 18, No. 13-4020, 2014 WL 5904891, at *1 (2d Cir. Nov. 14, 2014) (citing Twombly and Iqbal). The Court notes that, in their memorandum of law in opposition to the motions to dismiss, the Plaintiffs rely on the outdated legal standard under Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) governing motions to dismiss pursuant to Rule 12(b)(6). Under Conley, 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.” Id. at 45-46, 78 S.Ct. 99. However, through Twombly and Iqbal, the Supreme Court of the United States “ ‘retired the Conley no-set-of-facts test’” in “place of a new standard for addressing the sufficiency of a complaint under Rule 8(a).” McAllister v. Metro. Transit Auth., No. 13-CV2060 (JG), 2013 WL 4519795, at *3 (E.D.N.Y. Aug. 26, 2013)(internal citation omitted). D. As to the Claim Regarding MERS The Plaintiffs contend that MERS lacked authority as a nominee to assign the mortgage. (Compl., at ¶ 70.) This assertion flies in the face of the plain terms of the mortgage under which MERS could “exercise any or all” rights of the lender and the Lender’s successors and assigns. A brief background regarding MERS is in order. “In 1993, as mortgage securiti-zation became widespread, mortgage-industry participants created MERS to facilitate quick, low-cost transfers of mortgage interests.” Caraballo v. Homecomings Fin., No. 12 CIV. 3127 JPO, 2014 WL 2117225, at *1 (S.D.N.Y. May 21, 2014). Under the public recording system, each transfer of a note triggered fees and the potential for “delays ... by local recording offices, which were [subject to] ... complex local regulations and database" }, { "docid": "22257751", "title": "", "text": "Property in a local newspaper, pursuant to Mich. Comp. Laws § 600.3208. The notice stated that “the mortgage is now held by U.S. Bank National Association as Trustee by assignment.” (R. 7-5, Sheriffs Deed and Notice Affidavits, PID# 510.) It noted that the sale would take place on March 31, 2011. This same notice ran on March 10, 17, and 24, 2011. The same notice was also “posted in a conspicuous place” on the Property, pursuant to Mich. Comp. Laws § 600.3208, on March 6, 2011. The Property was sold at a sheriffs sale on March 31, 2011 to U.S. Bank for a credit bid of $159,200. That sale was recorded on April 28, 2011. On October 28, 2011, Plaintiff filed a complaint in Washtenaw County, Circuit Court, seeking damages and to have the foreclosure sheriffs sale of the Property set aside. Defendants removed the case to the United States District Court for the Eastern District of Michigan. On December 12, 2011, Defendants moved to dismiss Plaintiffs complaint. The district court granted dismissal on all counts on July 20, 2012. Conlin v. Mortg. Elec. Regis. Sys., Inc., No. 11-CV-15352, 2012 WL 3013920 (E.D.Mich. July 20, 2012). Plaintiff timely appealed, invoking this Court’s jurisdiction under 28 U.S.C. § 1291. DISCUSSION A. Standard of Review and Applicable Law We review a ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss de novo. Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir.2012). Though a complaint need not contain “ ‘detailed factual allegations’ ” to be sufficient, it must go beyond mere “ ‘labels and conclusions.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Following Twombly and Iqbal, it is well settled that ‘a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”’” Ctr. for Bio-Ethical Reform v. Napolitano, 648 F.3d 365, 369 (6th Cir.2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (in turn quoting Twombly, 550 U.S." }, { "docid": "4926308", "title": "", "text": "Massachusetts Consumer Protection Act, M.G.L. ch. 93A (“Chapter 93A”), that purportedly derives from a violation of M.G.L. c. 283C, has expired because the SOL for a Chapter 93A claim is four years. Latson v. Plaza Home Mortg., Inc., 708 F.3d 324, 326-27 (1st Cir. 2013). Plaintiffs’ additional TILA claims have also expired because the SOL for non-rescission TILA claims is one year, Mantz v. Wells Fargo Bank, N.A., No. 09-cv-12010-JLT, 2011 WL 196915, at *3 (D. Mass. Jan. 19, 2011), and their fraud claim has expired because the SOL for that claim is three years. M.G.L. c. 260 § 2A. Even if plaintiffs’ assertion that fraud occurred when Harmon first initiated foreclosure activities in August, 2011 is correct, the SOL has run on any such claim. Id. Although the plaintiffs were represented by counsel by at least as early as December, 2011, they filed no claims until March, 2016 which was more than four years after foreclosure proceedings were initiated and outside the limitations period. .Furthermore, plaintiffs’ claim that defendants are barred from enforcing the recorded mortgage because the SOL has run is a non-starter under the plain language of M.G.L. c. 260, § 33. That statute provides that a foreclosure proceeding is time-barred if more than five years have passed since the mortgage has matured. An acceleration of payments due to a default by the maker of a promissory note does not “mature” a mortgage that secures such note. See Hayden v. HSBC Bank USA, N.A., No. 16-cv-11492-DJC, 2016 WL 5746357, at *3 (D. Mass. Sept. 30, 2016). Because the term of the subject mortgage is 30 years, the SOL does not expire until 2040. Finally, plaintiffs have not demonstrated that any of the SOLs should be tolled with respect to their claims. Although Massachusetts recognizes the doctrine of equitable tolling, it enforces it “only sparingly” and only if plaintiffs have demonstrated excusable ignorance of a filing deadline, dismissal of a prior timely action for defective pleadings, or deceptive misconduct by a defendant .... Gauthier v. United States, No. 4:10-cv-40116-FDS, 2011 WL 3902770, at *6 (D. Mass. Sept. 2," }, { "docid": "5716522", "title": "", "text": "solely on its submitted proofs where defendant neither responded to plaintiffs submissions with respect to its claimed damages nor requested a hearing with respect to damages), report and recommendation adopted, 2008 U.S. Dist. LEXIS 95503, at *2 (S.D.N.Y. Nov. 19, 2008). Where, on a damages inquest, a plaintiff fails to demonstrate its damages to a reasonable certainty, the court should decline to award any damages, even though liability has been established through default. See Griffiths v. Francillon, No. CV 10-310KJFB) (GRB), 2012 WL 1341077, at *1, 2012 U.S. Dist. LEXIS 54681, at *2 (E.D.N.Y. Jan. 30, 2012) (recommending that no damages be awarded because motion papers alone were insufficient to support an award of damages), report and recommendation adopted, 2012 WL 1354481, at *1, 2012 U.S. Dist. LEXIS 54683, at *3 (E.D.N.Y. Apr. 13, 2012); Dor Yeshurim, Inc. v. A Torah Infertility Medium of Exch., No. CV 10-2837(JFB)(WDW), 2011 WL 7285038, at *5, 2011 U.S. Dist. LEXIS 153153, at *14-15 (E.D.N.Y. Aug. 10, 2011) (finding that “Complaint and plaintiffs papers in support [were] woefully inadequate to support any monetary relief,” and thus recommending that neither profits nor damages be awarded), report and recommendation adopted, 2012 WL 464000, at *1-2, 2012 U.S. Dist. LEXIS 17655, at *3 (E.D.N.Y. Feb. 10, 2012); Liberty Mut. Ins. Co. v. Luxury Transp. Mgmt. Inc., No. CV 07-0608(RJD)(JO), 2009 U.S. Dist. LEXIS 124326, at *38-39 (E.D.N.Y. Mar. 19, 2009) (finding that plaintiff failed to establish that it was entitled to any damages by virtue of defendant’s liability for negligent and intentional misrepresentation, or breach of contract, and recommending that the court award no damages to plaintiff for these claims), report and recommendation adopted, 2009 WL 1033177, at *1, 2009 U.S. Dist. LEXIS 32253, at *1 (E.D.N.Y. Apr. 15, 2009). II. ADEQUACY OF PLAINTIFF’S PLEADED CLAIMS Without a response from Defendants, this Court must first determine whether the allegations in Plaintiffs Complaint are sufficiently pleaded to establish Defendants’ liability. See Bambu Sales, Inc., 58 F.3d at 854 (stating that “[a] default judgment entered on well-pleaded allegations in a complaint establishes a defendant’s liability” (citation and internal quotation" }, { "docid": "21807518", "title": "", "text": "her MMWA claims. Compl. ¶¶ 117-18, 124-45. The district court construed this as a request for actual damages, rescission, or revocation of acceptance. See Pyskaty, 2016 WL 828135, at *5-9 & n.14, 2016 U.S. Dist. LEXIS 21945, at *16-28 & n.14. Pyskaty does not dispute that her claimed actual damages for breach of warranty fall well below the $50,000 amount-in-controversy requirement. She argues, however, that she can satisfy that threshold based on the value of either her rescission or revocation claim. Pyskaty further argues that she should be permitted to supplement the value of her MMWA claims by amending her complaint to add a request for punitive damages. We agree with the district court that Pyskaty may not count the value of the proposed punitive damages toward the amount in controversy. However, we conclude that Pyskaty’s rescission claim supplies a sufficient basis for subject-matter jurisdiction and therefore reverse the judgment of the district court on that basis. A. Punitive Damages “We review a district court’s denial of leave to amend for abuse of discretion, unless the denial was based on an interpretation of law, such as futility, in which case we review the legal conclusion de novo.“ Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012). “Futility is a determination, as a matter of law, that proposed amendments would fail to cure prior deficiencies or to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Id. In general, when assessing whether an amended complaint would state a claim, we consider “the proposed amendments] ... along with the remainder of the complaint,” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 323 n.3 (2d Cir. 2010), cert. denied, 562 U.S. 1168, 131 S.Ct. 901, 178 L.Ed.2d 803 (2011), accepting as true all non-conclusory factual allegations therein, and drawing all reasonable inferences in the plaintiffs favor, Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). However, “in computing [the] jurisdictional amount, a claim for punitive damages is to be given closer scrutiny, and the trial judge accorded greater" }, { "docid": "20737103", "title": "", "text": "attached to the complaint alleges that “the closing attorney overcharged us for title insurance.” The district court dismissed this claim on the grounds that “fees for title insurance are not finance charges” under the relevant regulations, McKenna, 2011 U.S. Dist. LEXIS 28719, at *8, 2011 WL 1100160, at *2, although it acknowledged in a footnote that fees for title insurance in a transaction secured by real property may qualify as finance charges if the fees are not “bona fide and reasonable in amount,” id., 2011 U.S. Dist. LEXIS 28719, at *9-10 n. 36, 2011 WL 1100160, at *2 n. 36 (quoting 209 Mass.Code Regs. 32.04(3)(g)(1)). However, to invoke this qualification, the complaint had to allege a factual basis for a claim that the bank’s charges were not “bona fide ” or were unreasonable. Cf. Guise v. BWM Mortg., LLC, 377 F.3d 795, 800 (7th Cir.2004) (construing counterpart federal regulation); Brannam v. Huntington Mortg. Co., 287 F.3d 601, 606 (6th Cir.), cert. denied, 537 U.S. 1048, 123 S.Ct. 635, 154 L.Ed.2d 522 (2002) (same); McDermott v. Mortg. Elec. Registration Sys., No. 08-12121, 2010 U.S. Dist. LEXIS 104912, at *11-12, 2010 WL 3895460, at *4 (D.Mass. Sept. 30, 2010) (interpreting Massachusetts law). Nothing in Suzette McKenna’s complaint or attached to it provided any such factual basis for such a claim; the refer enees to overcharge and the regulation’s $35 figure are wholly conelusory; and dismissal on a 12(b)(6) motion is appropriate where “statements in the complaint ... merely offer legal conclusions couched as facts or are threadbare or conelusory.” This reflects the Supreme Court’s insistence, see Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), on more than conelusory allegations or rote repetition of statutory language before further costs and discovery burdens are imposed on the parties. Here, on motion for reconsideration, Suzette McKenna by affidavit furnished information suggesting that the lawyer who represented Wells Fargo in the loan refinancing “charged $712.00 [for title insurance] rather than the base policy rate of $667.00”" }, { "docid": "20168020", "title": "", "text": "A. Legal Standard for Rule 12(b)(6) To survive a Rule 12(b)(6) motion to dismiss, “ ‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 65 (2d Cir.2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). Although the court must “accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party,” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007), plaintiffs “[flactual allegations must be enough to raise a right to relief above the speculative level,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Indeed, “[cjonclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to [defeat] a motion to dismiss.” Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir.2006) (alterations in original) (internal quotation marks omitted). “[I]n an employment discrimination case, the plaintiff is not required to set forth specific facts that establish each and every element of a prima facie case of discrimination”; rather, the plaintiff need only plead sufficient facts “to state a plausible claim that also gives fair notice to the defendant of the basis for each claim.” Bakeer v. Nippon Cargo Airlines, Co., No. 09-CV-3374, 2011 WL 3625103, at *22 (E.D.N.Y. July 25, 2011), adopted by 2011 WL 3625083 (E.D.N.Y. Aug. 12, 2011); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (noting that the “Federal Rules do not contain a heightened pleading standard for employment discrimination suits”). “The elements of a prima facie case do, however, ‘provide an outline of what is necessary to render [a plaintiffs employment discrimination] claims for relief plausible.’ ” Pahuja v. Am. Univ. of Ant., No. 11-CV-4607, 2012 WL 6592116, at *9 (S.D.N.Y. Dec. 18, 2012) (alteration in original) (quoting Sommersett v. City of New York, No. 09-CV-5916, 2011 WL 2565301, at *5" }, { "docid": "5216190", "title": "", "text": "requirement above the statutory minimum. The question, of course, is not what amount of flood insurance a lender reason ably could require, but what this particular HUD mortgage provision in fact permits the lender to demand. See Hofstetter v. Chase Home Fin., LLC, 751 F.Supp.2d 1116, 1127 n. 3 (N.D.Cal.2010) (“Simply because an agency recommends that lenders maintain a certain amount of flood insurance coverage does not mean that lenders have carte blanche to do so without regard to the terms of their loan agreements with borrowers.”). As to that question, we conclude that a rational jury could construe Paragraph 4 in favor of either Kolbe or the Bank. Though the text of Paragraph 4 and the extrinsic evidence both provide strong support for Kolbe’s interpretation, his reading is not the only reasonable one. See Morris v. Wells Fargo Bank, N.A, No. 2:11-cv-00474, 2012 WL 3929805 (W.D.Pa. Sept. 7, 2012) (denying motion to dismiss breach of contract claim involving same language) (stating that, “[a]t the very least, plaintiffs interpretation is tenable”); Wulf v. Bank of America, 798 F.Supp.2d 586, 588 (E.D.Pa.2011) (same); Skansgaard v. Bank of America, 896 F.Supp.2d 944, 947-48 (W.D.Wash.2011) (same). Kolbe has therefore stated a plausible breach of contract claim, and, hence, the district court erred in dismissing his complaint on the ground that the mortgage unambiguously permitted the Bank to demand the additional $46,000 in coverage. See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir.2011) (holding that “an adequate complaint must provide fair notice to the defendants and state a facially plausible legal claim” (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). B. The Covenant of Good Faith and Fair Dealing Kolbe alleges that the defendants acted in bad faith and consequently breached the implied covenant of good faith and fair dealing by demanding flood insurance in an amount in excess of the coverage required by his mortgage. The covenant, implied in every contract in New Jersey, imposes a duty on each party" }, { "docid": "1494831", "title": "", "text": "application deprives the court of subject matter jurisdiction in the matter.” Brims v. Ramapo Police Dep’t, No. 11-CV-0712, 2011 WL 7101233, at *6 (S.D.N.Y. Dec. 23, 2011) (citing Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 816 n. 22, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976); Diamond \"D\", 282 F.3d at 198); cf. Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973) (“Younger v. Harris contemplates the outright dismissal of the federal suit, and the presentation of all claims, both state and federal, to the state courts.”). Thus, as the Court now lacks subject matter jurisdiction over the Petition, it must remand the Petition to state court. See 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the ease shall be remanded.”). II. Defendants’ Motion to Dismiss The Court will first discuss the applicable standards of review before addressing the merits of Defendants’ motion. A. Standard of Review Defendants move to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure and for lack of subject matter jurisdiction under Rule 12(b)(1). 1. Under Rule 12(b)(6) In deciding Rule 12(b)(6) motions to dismiss for failure to state a claim, the Court applies a “plausibility standard,” which is guided by “[t]wo working principles.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); accord Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir.2009). First, although the Court must accept all allegations as true, this “tenet” is “inapplicable to legal conclusions;” thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conelusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); accord Harris, 572 F.3d at 72. Second, only complaints that state a “plausible claim for relief’ can survive a Rule 12(b)(6) motion to dismiss. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at" }, { "docid": "17427245", "title": "", "text": "attached to the complaint or incorporated therein by reference. See DiFolco, 622 F.3d at 111. Plaintiff may not amend her Complaint via statements in her opposition papers. See Kosovich v. Metro Homes, LLC, No. 09-CV-6992, 2009 WL 5171737, at *5 n. 6, 2009 U.S. Dist. LEXIS 121390, at *14-15 n. 6 (S.D.N.Y. Dec. 29, 2009) (\"[I]t is axiomatic that the Complaint cannot be amended by the briefs in opposition to a motion to dismiss.” (quoting O'Brien v. Nat’l Prop. Analysts Partners, 719 F.Supp. 222, 229 (S.D.N.Y.1989))). . See, e.g., Hutchinson v. Del. Sav. Bank FSB, 410 F.Supp.2d 374, 383 (D.N.J.2006) (cited in Gorham-DiMaggio, 2009 WL 1748743, at *8, 2009 U.S. Dist. LEXIS 52078, at *29) (denying motion to dismiss where complaint alleged that plaintiffs suffered \"negative credit ratings on their credit reports [and] the inability to obtain and borrow another mortgage loan and other financing”); Cortez v. Keystone Bank, Inc., No. 98-CV-2457, 2000 WL 536666, at *12, 2000 U.S. Dist. LEXIS 5705, at *39-40 (E.D.Pa. May 2, 2000) (\"Actual damages encompass compensation for any pecuniary loss including such things as time spent away from employment while preparing correspondence to the loan servicer, and expenses for preparing, photocopying and obtaining certified copies of correspondence.”); Johnstone v. Bank of Am., N.A., 173 F.Supp.2d 809, 814 (N.D.Ill.2001) (finding sufficient under RESPA the allegation that \"[a]s a result of [defendant] violating § 2605(e) ... [plaintiff] ... (3) has paid late fees; [and] (4) [defendant] has foreclosed on her property”); Manzano v. MetLife Bank N.A., No, 2:11-CV-651, 2011 WL 3420822, at *3, 2011 U.S. Dist. LEXIS 85458, at *10 (E.D.Cal. Aug. 2, 2011) (denying motion to dismiss where \"Plaintiff avers that [defendant’s] allegedly unlawful disclosure of adverse loan information resulted in her inability to 'obtain credit or refinancing’ and caused her to 'incur excessive interest costs and penalties ... in excess of $100,000.00.’ ”). Cf. Gorham-DiMaggio, 2009 WL 1748743, at *8, 2009 U.S. Dist. LEXIS 52078, at *29-30 (dismissing claim where complaint alleged only that plaintiff \"was damaged”); Gorham, 2010 WL 1704829, at *4, 2010 U.S. Dist. LEXIS 41797, at *10-11 (dismissing claim where amended" }, { "docid": "17559663", "title": "", "text": "In addition, the district court concluded that the Lead Plaintiffs lacked standing to bring § 12(a)(2) claims as they failed to allege that they had purchased the relevant shares directly from Barclays. Id. at *5-10. Further, with respect to just the Series 5 Offering claims, the district court concluded that because the only Series 5 Lead Plaintiff, Martin Ettin, had purchased his Series 5 shares after Barclays made corrective disclosures, he knew of the alleged untruths at the time of purchase and therefore could not recover under §§ 11 and 12(a)(2), much less serve as a lead plaintiff. Id. at *10. Soon after the dismissal, Lead Plaintiffs moved for reconsideration, requesting that the court modify its dismissal to be without prejudice and grant them leave to amend their complaint. They submitted a proposed Second Consolidated Amended Complaint (“the Proposed Complaint”), which included, among other changes, amended allegations regarding the Series 5 Offering that ostensibly addressed the pleading deficiencies identified by the district court. Significantly, the Proposed Complaint alleged that the defendants did not believe that the writedowns Barclays took on its mortgage-related assets were sufficient. After reviewing the Proposed Complaint, the district court denied reconsideration, holding that amendment would be futile as Lead Plaintiffs could not allege that the defendants had disbelieved their subjective representations without alleging fraud — a claim under § 10(b) of the 1934 Exchange Act which Lead Plaintiffs had not pled. In re Barclays Bank PLC Sec. Litig., No. 09-cv-1989, 2011 WL 2150477, at *3 (S.D.N.Y. May 31, 2011). This appeal followed. DISCUSSION We review de novo a district court’s dismissal of a complaint for failure to state a claim, accepting all factual allegations in the complaint as true and drawing all reasonable inferences in plaintiffs’ favor. See Gorman v. Consol. Edison Corp., 488 F.3d 586, 591-92 (2d Cir.2007). To survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotations marks omitted). “[T]he" }, { "docid": "1416924", "title": "", "text": "the Library’s motion to dismiss, the court concluded that the plaintiffs Title II claims against the library failed because her exclusive remedy against the Library was a claim under Title I of the ADA, id. at *12, 2011 U.S. Dist. LEXIS 49567, at *39, further noting that the plaintiff did not refute the Library’s contention that the plaintiff had not exhausted her administrative remedies under Title I, id. at *12 n. 11, 2011 U.S. Dist. LEXIS 49567, at *39 n. 11. The district court then declined to exercise supplemental jurisdiction over the state-law claims, and dismissed the complaint. The plaintiff appeals. DISCUSSION “We review de novo a district court’s dismissal of a complaint under Rule 12(b)(6), accepting all of the complaint’s factual allegations as true and drawing all reasonable inferences in the plaintiffs’ favor.” Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424, 429 (2d Cir.2012) (citing Interpharm, Inc. v. Wells Fargo Bank, Nat’l Ass’n, 655 F.3d 136, 141 (2d Cir.2011)). The complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “[A] dismissal pursuant to Rule 12(b)(6) is, at bottom, a declaration that the plaintiffs complaint and incorporated materials are insufficient as a matter of law to support a claim upon which relief may be granted.” Halebian v. Berv, 644 F.3d 122, 130-31 (2d Cir.2011). I. ADA Title II Claims Against the NYSLRS A. Sovereign Immunity The NYSLRS moved to dismiss on the basis of New York State’s and the NYSLRS’s sovereign immunity from suit. The Eleventh Amendment to the United States Constitution provides that “[t]he 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" }, { "docid": "20958649", "title": "", "text": "underlying note. See U.S. Bank v. Dellarmo, 94 A.D.3d 746, 748, 942 N.Y.S.2d 122 (2d Dep’t 2012); Silverberg, 86 A.D.3d at 279-80, 926 N.Y.S.2d 532. “[S]ince a mortgage is merely security for a debt, it cannot exist independently of the debt, and thus, a transfer or assignment of only the mortgage without the debt is a nullity and no interest is acquired by it.” Dellarmo, 94 A.D.3d at 748, 942 N.Y.S.2d 122; see also Merritt v. Bartholick, 36 N.Y. 44, 45 (1867) (frequently cited for establishing the proposition that “a transfer of the mortgage without the debt is a nullity, and no interest is acquired by it”). The Trustee contends that in order to enforce the Individual Lender Notes and Individual Lender Mortgages — and by extension, the Defendants’ Consolidated Notes and Consolidated Mortgages — the Defendants must be “holders” of the Individual Lender Notes as defined by NYUCC § 1-201 (ECF AP No. 14 ¶¶ 63-66). Because notes are negotiable instruments, the Trustee asserts that the Individual Lender Notes could only have been acquired by the Defendants — making them “holders” — by indorsement and physical delivery of the notes, under NYUCC § 3-202(1) (Id. ¶¶ 56-58). As the Trustee sees it, the written assignment of the Individual Lender Notes was not a valid manner by which the Defendants could acquire ownership of those Individual Lender Notes, rendering Defendants’ Consolidated Notes and Consolidated Mortgages a nullity (See id.). The Trustee’s formulaic application of the NYUCC is not supported by the case law regarding standing to foreclose a mortgage. The majority — and it is a substantial majority — position of both federal and state courts applying New York law is that “[a] plaintiff has standing to bring a mortgage foreclosure action ’where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced.’” 1077 Madison St., LLC v. Smith, No. 13-CV-7182 (DLI), 2015 U.S. Dist. LEXIS 135025, at *15 (E.D.N.Y. Aug. 27, 2015), aff'd, 2015 WL 5793427, 2015 U.S. Dist. LEXIS 134173 (E.D.N.Y." }, { "docid": "23143454", "title": "", "text": "AFFIRMED. . Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). See generally 2 James W. Moore et al„ Moore's Federal Practice § 8.04[l][b] (3d ed. 2012). . Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct 817, 82 L.Ed. 1188 (1938); Guaranty Trust Co. v. York, 326 U.S. 99, 111-12, 65 S.Ct. 1464, 89 L.Ed. 2079 (holding that a period of limitations is a matter of state law to be determined pursuant to Erie). . See Reagan v. U.S. Bank Nat’l Ass’n, 2011 WL 4729845 (S.D.Tex. Oct. 6, 2011); Johnson v. Deutsche Bank Nat'l Trust Co., 2010 WL 4962897 (S.D.Tex. Dec. 1, 2010); In re Ortegon, 398 B.R. 431, 439-40 (Bankr.W.D.Tex.2008); Hannaway v. Deutsche Bank Nat'l Trust Co., 2011 WL 891669 (W.D.Tex. Mar. 11, 2011); Williams v. Deutsche Bank Nat’l Trust Co., 2011 WL 891645 (W.D.Tex. Mar. 11, 2011); In re Chambers, 419 B.R. 652 (Bankr.E.D.Tex.2009). . The Priesters note that not all district courts to address this question have agreed. In Smith v. JPMorgan Chase Bank, Nat'l Ass’n., 825 F.Supp.2d 859, 861 (S.D.Tex.2011) adhered to on reconsideration sub nom. Smith v. JPMorgan Chase Bank Nat’l Ass’n, 2012 WL 43627 (S.D.Tex. Jan. 9, 2012), the court held that under the Texas Constitution, a “non-compliant mortgage lien against a homestead is [] void ab initio” and that therefore the limitations period does not apply. In Santos v. CitiMortgage, Inc., 2012 WL 1065464 (N.D.Tex. Mar. 29, 2012), the court, relying on Smith, held that the limitations period did not apply and that a constitutionally infirm lien was invalid. It did, however, apply the limitations period to the resulting claim for forfeiture of principal and interest due four years before the suit was brought. Id. The key in Smith was the finding that constitutional noncompliance renders liens void rather than voidable. The Priesters argue that this reasoning should be applied here and that because the lien was void ab initio, no statute of limitations applies. That conclusion, however," }, { "docid": "21807519", "title": "", "text": "the denial was based on an interpretation of law, such as futility, in which case we review the legal conclusion de novo.“ Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012). “Futility is a determination, as a matter of law, that proposed amendments would fail to cure prior deficiencies or to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Id. In general, when assessing whether an amended complaint would state a claim, we consider “the proposed amendments] ... along with the remainder of the complaint,” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 323 n.3 (2d Cir. 2010), cert. denied, 562 U.S. 1168, 131 S.Ct. 901, 178 L.Ed.2d 803 (2011), accepting as true all non-conclusory factual allegations therein, and drawing all reasonable inferences in the plaintiffs favor, Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). However, “in computing [the] jurisdictional amount, a claim for punitive damages is to be given closer scrutiny, and the trial judge accorded greater discretion, than a claim for actual damages.” Zahn v. Int'l Paper Co., 469 F.2d 1033, 1033 n.1 (2d Cir. 1972), aff'd, 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). A “trial court is plainly not compelled to accept a claim of punitive damages, however unwarranted, made for the purpose of conferring federal jurisdiction.” Id. In requesting leave to amend the complaint in the case at bar, Pyskaty did not propose to include additional factual allegations to support her claim for punitive damages. Rather, she sought permission to amend the complaint to clarify that she was seeking punitive damages as an additional remedy under the MMWA. See Mem. of Law in Opposition to Mot. to Dismiss, ECF No. 30, at 17 n.4. The district court rejected that bid, concluding that the facts alleged in the amended complaint could not support an award of punitive damages under the MMWA and that the proposed amendment would thus be futile. Pyskaty, 2016 WL 828135, at *7, 2016 U.S. Dist. LEXIS 21945, at *20-22. We agree. As the" }, { "docid": "19511502", "title": "", "text": "to dismiss. However, to survive a motion for summary judgment, the plaintiff must still present competent medical evidence of causation and severity of his emotional distress....\"); Carbone v. City of New Castle , No. 2:15-CV-1175, 2016 WL 406291, at *12 (W.D. Pa. Feb. 3, 2016) (denying motion to dismiss despite lack of allegations of competent medical evidence); St. Clair v. Borough of New Brighton , No. 2:16-00667-TFM, 2016 WL 4396171, at *5 (W.D. Pa. Aug. 18, 2016) (same); Mascarini v. Quality Employment Servs. & Training , No. 1:10-CV-1546, 2011 WL 332425, at *9 (M.D. Pa. Jan. 31, 2011) (same); Schultz v. Hughesville Borough , No. 4:10-CV-0262, 2010 WL 5147519, at *7 n.9 (M.D. Pa. Dec. 13, 2010) (same) (internal citations and quotations omitted); E.N. v. Susquehanna Twp. Sch. Dist. , No. 1:09-CV-1727, 2010 WL 4853700, at *19 (M.D. Pa. Nov. 23, 2010) (same); Sullivan v. Warminster Twp. , No. 07-4447, 2010 WL 2164520, at *10 (E.D. Pa. May 27, 2010) (same); Hall v. Raech , No. CIV.A. 08-5020, 2009 WL 811503, at *7 (E.D. Pa. Mar. 25, 2009) (same). But see Rosenberg v. Thomas Jefferson Univ. Hosp., Inc. , No. 15-4208, 2016 WL 2766504, at *2 (E.D. Pa. May 13, 2016) ; Buttermore v. Loans , No. CV 15-1514, 2016 WL 308875, at *9 (W.D. Pa. Jan. 25, 2016) ; McComb v. Morgan Stanley & Co. , No. 07-1049, 2007 WL 4150786, at *8 (W.D. Pa. Nov. 19, 2007) ; Doe v. Equifax Servs., Inc. , No. CIV. A. 88-3872, 1989 WL 57348, at *9 (E.D. Pa. May 26, 1989). 42 U.S.C § 1985(3). Farber v. City of Paterson , 440 F.3d 131, 134 (3d Cir. 2006) (internal citation omitted); see also McCleester v. Mackel , 2008 WL 821531, at *26, 2008 U.S. Dist. LEXIS 27505, at *92 (W.D. Pa Mar. 27, 2008) (citing Griffin v. Breckenridge , 403 U.S. 88, 101, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) (\"The language requiring intent to deprive of equal protection...means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. The conspiracy...must aim at" }, { "docid": "15571504", "title": "", "text": "Weingrad v. Telepathy, Inc., No. 05-CV-2024 (MBM), 2005 WL 2990645, at *5, 2005 U.S. Dist. LEXIS 26952, at *15 (S.D.N.Y. Nov. 3, 2005) (citation and internal quotation marks omitted) (holding that non-signatory defendants could enforce forum selection clause against plaintiff). A non-signatory may enforce a forum selection clause when it is closely related to a signatory. More specifically, a non-party to a contract may enforce a forum selection clause if “ ‘the relationship between the non-party and the signatory [is] sufficiently close so that the nonparty’s enforcement of the forum selection clause is ‘foreseeable’ by virtue of the relationship between the signatory and the party sought to be bound.’ ” In re Optimal, 813 F.Supp.2d at 369, 2011 WL 1676067, at *9, 2011 U.S. Dist. LEXIS 46745, at *39-40 (quoting Direct Mail Prod. Servs. Ltd. v. MBNA Corp., No. 09-CV-10550 (SHS), 2000 WL 1277597, at *3, 2000 U.S. Dist. LEXIS 12945, at *8 (S.D.N.Y. Sept. 7, 2000)); see also Firefly Equities LLC v. Ultimate Combustion Co., 736 F.Supp.2d 797, 799 (S.D.N.Y.2010) (“courts in [the Second] Circuit and elsewhere have articulated and applied the ‘closely related’ doctrine”) (collecting cases); In re Refco Sec. Litig., 10-CV-1868 (JSR), 2009 U.S. Dist. LEXIS 130683, at *40 (S.D.N.Y. Nov. 16, 2009) (Special Master’s Report and Recommendation), adopted by 2010 U.S. Dist. LEXIS 5832 (S.D.N.Y. Jan. 20, 2010) (“After Aguas, there can be no dispute that forum selection clauses will be enforced even against non-signatories where they meet the ‘closely related’ standard.”); Novak v. Tucows, Inc., No. 06-CV-1909 (JFB), 2007 WL 922306, at *13, 2007 U.S. Dist. LEXIS 21269, at *46 (E.D.N.Y. Mar. 26, 2007) (non-signatory defendant could enforce forum selection clause against plaintiff). Under this standard, the Vatican State is sufficiently related to plaintiff, SRLLC, and the sublicense agreements such that enforcement of the forum selection clauses by the Vatican State was foreseeable. There are multiple grounds for this conclusion: (1) the Vatican State’s interests in the sublicense agreements are derivative of and directly related to SRLLC’s conduct in entering into and allegedly violating those agreements; (2) SRLLC’s rights in the sublicense agreements are derivative" } ]

[ { "docid": "23464600", "title": "", "text": "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” The Court’s role is “to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” “General, conclusory allegations need not be credited, however, when they are belied by more specific allegations of the complaint.” In the fraud context, plaintiffs do not enjoy a “license to base claims ... on speculation and conclusory allegations.” Federal Rule of Civil Procedure 9(b) requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” The Second Circuit has held that, at a minimum, the complaint must identify the statements plaintiff asserts were • fraudulent and why, in plaintiffs view, they were fraudulent-specifying who made them and where and when they were made. This particularity requirement is reinforced by the Reform Act, in which Congress required that all private seeurities class action complaints alleging material misrepresentations or omissions “shall specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading.” In deciding a Rule 12(b)(6) motion, the Court may consider the following materials: (1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents “integral” to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence. PROLOGUE The two cases before the Court are part of a large group assigned to this Court by the Multidistrict Panel for consolidated administration. These cases, and the New York Attorney General’s report which precipitated them, brought to specific public attention certain" } ]

[ { "docid": "15226369", "title": "", "text": "and personal way from the purported fraud; (2) engaged in deliberately illegal behavior; (3) knew facts or had access to information suggesting that their public statements were not accurate; or (4) failed to check information they had a duty to monitor.” Novak, 216 F.3d at 311 (citations omitted); see also Kalnit v. Eichler, 264 F.3d 131, 138 (2d Cir. 2001) (“A plaintiff can establish this intent either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” (internal quotation marks omitted)). “[T]o qualify as ‘strong,’ an ‘inference of scienter must be more than merely plausible or reasonable—it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent.’ ” Teamsters Local 445 Freight Div. Pension Fund v. Dynex Capital Inc., 531 F.3d 190, 194 (2d Cir. 2008) (quoting Tellabs, 551 U.S. at 314, 127 S.Ct. 2499). Here, plaintiffs do not allege motive or that defendants received a concrete and personal benefit; therefore, “the strength of the circumstantial allegations [indicating conscious behavior] must be correspondingly greater.” Kalnit, 264 F.3d at 142 (quoting Beck v. Mfrs. Hanover Trust Co., 820 F.2d 46, 50 (2d Cir. 1987)). Plaintiffs allege scienter on the part of both BHP and the Individual Defendants. We begin with BHP’s scienter. A. Corporate Scienter Corporate scienter may be alleged by “pleading facts sufficient to create a strong inference either (1) that ‘someone whose intent could be imputed to the corporation acted with the requisite scienter’ or (2) that the statements ‘would have been approved by corporate officials sufficiently knowledgeable about the company to know’ that those statements were misleading.” Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 177 (2d Cir. 2015) (quoting Dynex, 531 F.3d at 195-96). “There is no formulaic method or seniority prerequisite for employee scien-ter to be imputed to the corporation, but scienter by management-level employees is generally sufficient to attribute scienter to corporate defendants.... Furthermore, the individual making an alleged misstatement and the one" }, { "docid": "5530550", "title": "", "text": "illegal conduct. See id. at 308. To plead recklessness, a plaintiff must allege facts showing conduct that was “highly unreasonable, representing an extreme departure from the standards of ordinary care to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.” Rothman, 220 F.3d at 90 (citation omitted). Recklessness has been sufficiently pled where there are specific allegations that a defendant knew of facts or had access to information contradicting his public statements, or where he failed to review information that he had a duty to monitor, or where he ignored obvious signs of fraud. Novak, 216 F.3d at 308. “Where plaintiffs contend [a] defendant ] had access to contrary facts, they must specifically identify the reports or statements containing this information.” Id. at 309. To plead facts supporting a strong inference of the requisite scienter by showing motive and opportunity, a plaintiff must allege facts showing “concrete benefits that could be realized by one or more of the false statements and wrongful non-disclosures alleged,” and “the means and likely prospect of achieving the concrete benefits by the means alleged.” Press v. Chemical Inv. Serv. Corp., 988 F.Supp. 375, 390 (S.D.N.Y.1997) (quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1129 (2d Cir.1994)). General allegations of motive “possessed by virtually all corporate insiders” are insufficient to raise a strong inference of fraudulent intent. Novak, 216 F.3d at 307. In its recent decision in Novak v. Ka-saks, 216 F.3d 300, after summarizing pri- or case law, the Second Circuit explained that a complaint pleads facts sufficient to raise a “strong inference” of fraudulent intent where it sufficiently alleges that defendants: (1) benefitted in a concrete and personal way from the purported fraud ...; (2) engaged in deliberately illegal behavior ...; (3) knew facts or had access to information suggesting that their public statements were not accurate ...; or (4) failed to check information they had a duty to monitor. Id. at 311. DISCUSSION A. Bear Stearns Bear Stearns brings its motion to dismiss pursuant to Rule 12(b)(6), arguing" }, { "docid": "12168013", "title": "", "text": "some of its OEM contracts in its November 10, 1998 S-3/A filing, subsequent filings were more oblique and spoke only of general cost pressures. Further, no public statements identified by either party specify the quantity of these declining-price contracts. By framing this contention so narrowly, however, Plaintiffs have created a materiality problem. Defendants argue that the alleged misrepresentations are immaterial in light of the fact that the existence and financial impact of Tower’s loss contracts (i.e., contracts where Tower expected to lose money) was disclosed. Materiality can properly be evaluated only in the context of the total mix of information, and it is thus appropriate to consider whether Tower’s disclosure of its loss contracts ob viated any need to more fully discuss its declining-price contracts. An investor would surely be more concerned with the former type, since Tower could well have turned profits on its declining-price contracts. More importantly, the Complaint fails to provide any meaningful statement about the magnitude of Tower’s declining-price contracts or their effects upon the company and its financials. The Complaint alleges that there were “many” such contracts which required Tower to “lay out a lot of capital .... ” (Compl. ¶¶ 66, 161). Such vague assertions provide no basis for determining the significance of Tower’s alleged misrepresentations. See NTL, 347 F.Supp.2d at 24-25; Stone & Webster, 414 F.3d at 200. The Complaint’s failure to provide any yardstick by which to measure the significance of these omissions to a multi-billion dollar corporation such as Tower is fatal to its claims on this issue. Here, Plaintiffs’ allegations fail to establish any basis for scienter. The strong inference of fraudulent intent “may arise where the complaint sufficiently alleges that the defendants: (1) benefited in a concrete and personal way from the purported fraud; (2) engaged in deliberately illegal behavior; (3) knew facts or had access to information suggesting that their public statements were not accurate; or (4) failed to check information they had a duty to monitor.” Novak, 216 F.3d at 311 (internal citations omitted). While the Complaint sufficiently alleges knowledge of Tower’s contracts on the part of" }, { "docid": "15870352", "title": "", "text": "conscious behavior.” Advanta, 180 F.3d at 534; see also Burlington, 114 F.3d at 1418. Both methods are equally acceptable and, “[w]hile it is true that motive can be a relevant consideration, and personal financial gain may weigh heavily in favor of a scienter inference,” the Supreme Court has said that “the absence of a motive allegation is not fatal.” Tellabs, 127 S.Ct. at 2511. a. Inferring Scienter from Defendant’s “Motive and Opportunity” If the plaintiff desires to employ the “motive and opportunity” method, the plaintiff should demonstrate a logical connection between the alleged fraud and motive in order to establish a reasonable inference of fraud: plaintiffs’ allegations as to defendants’ motive to defraud investors with respect to a certain matter cannot be matched with plaintiffs’ facts that defendants committed fraud with respect to another matter. See Glickman v. Alexander & Alexander Servs., 1996 WL 88570, at *12, 1996 U.S. Dist. LEXIS 2325, at *36 (S.D.N.Y. Feb. 27, 1996) (“[There should be a] coherent nexus between the alleged fraudulent conduct and its alleged purpose”); ef. Glessner v. Kenny, 952 F.2d 702, 714 (3d Cir.1991) (pleading a “complaint is not a mix and match game”). Furthermore, there must be more than conclusory allegations of motive and opportunity, see, e.g., Mortensen v. Ameri-Credit Corp., 123 F.Supp.2d 1018 (N.D.Tex.2000); Livent, Inc. Sec. Litig., 78 F.Supp.2d 194 (S.D.N.Y.1999), or a mere set of assertions “from which an inference of [motive and opportunity] rationally could be drawn.” Tellabs, 127 S.Ct. at 2510 (emphasis in original). Rather, a strong inference of motive and opportunity may arise only if the complaint sufficiently alleges that the defendants: (1) “benefit-ted in a concrete and personal way from the purported fraud”; (2) “engaged in deliberately illegal behavior”; (3) “knew facts or had access to information suggesting that their public statements were not accurate”; or (4) “failed to check information they had a duty to monitor.” Novak v. Kasaks, 216 F.3d 300, 311 (2d Cir.2000); see Wilson v. Bernstock, 195 F.Supp.2d 619, 633 (D.N.J.2002) (“Motive entails allegations that the individual corporate defendants stood to gain in a concrete and personal way from" }, { "docid": "8180135", "title": "", "text": "arguments. . Plaintiff asserts that \"[t]here is no fixed formula for pleading scienter. Non-exclusive examples include that defendants (1) benefit-ted in a concrete and personal way ...; (2) engaged in deliberately illegal behavior; (3) knew or had access to information that their public statements were not accurate; (4) failed to check information ...; or (5) ignored obvious signs of fraud.” (Pl.’s Opp’n at 12.) Plaintiff lists accurate factors; however, but for the first factor, which is simply motive and opportunity, these are the factors courts look to in judging scienter under the strong circumstantial evidence prong — they are not themselves separate tests for scienter. See In re Lehman Bros. Sec. & Erisa Litig., 799 F.Supp.2d 258, 293-94, 2011 WL 3211364, at *21 (S.D.N.Y. July 27, 2011); In re Wachovia Equity Sec. Litig., 753 F.Supp.2d 326, 348, 351 (S.D.N.Y.2011) (noting that these factors, though \"an alternate [five]-part formulation,” have not changed the Second Circuit’s \"the two-prong scienter standard ..., mindful that litigants need not rely on magic words such as 'motive and opportunity’ with respect to intent.” (internal quotation marks omitted)); In re SLM, 740 F.Supp.2d at 559 (court considering factors (2) through (5) in discussion of strong circumstantial evidence); see also supra, note 12. . Plaintiff does not mention Lundgren’s alleged \"you have lost your most-favored nation” statement in arguing for scienter in his brief. (See PL's Opp’n at 12-13.) The Court would not have considered it on this point anyway, for the reasons stated supra in note 7. The quotation is taken from a July 31, 2007 New York Times article that does not indicate where, when, and to whom Lundgren’s statement was made. Michael Barbaro, At Liz Claiborne, a Bold Fashion Statement, N.Y. Times, July 31, 2007. Nor does the SAC allege that any other witness, including the confidential witnesses, was present when and where Lundgren apparently made this remark. Accordingly, to the extent plaintiff is attempting to plead that Lundgren’s \"most-favored nation” remark put defendants on notice of the falsity of their assertions, Lundgren’s remark is not plead with particularity and the Court will not consider" }, { "docid": "3899489", "title": "", "text": "facts to show that defendants had both motive and opportunity to commit fraud or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994). In fact, the Second Circuit has noted that “the PSLRA effectively raises the nationwide pleading standard to that previously existing in this circuit and no higher (with the exception of the ‘with particularity’ requirement).” Novak, 216 F.3d at 310. Nonetheless, the Second Circuit concluded that “Congress’s failure to include language about motive and opportunity suggest that we need not be wedded to these concepts in articulating the prevailing standard.” Id. Other Circuit Courts, however, have concluded that the PSLRA “strengthens the old Second Circuit standard by rejecting the simple pleading of motive and opportunity.” In re Interbank Funding Corp. Sec. Litig., 329 F.Supp.2d 84, 90 (D.D.C.2004) (citing Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1283 (11th Cir.1999); In re Silicon Graphics, 183 F.3d 970, 975 (9th Cir.1999); In re Comshare, Inc. Sec. Litig., 183 F.3d 542, 550-51 (6th Cir.1999)). The District of Columbia Circuit has not yet provided guidance on this issue. In re Interbank Funding Corp. Sec. Litig., 329 F.Supp.2d at 90. Under the “motive and opportunity test,” it has been held that scienter is properly alleged when a complaint posits that the defendants “(1) benefitted in a concrete and personal way from the purported fraud ...; (2) engaged in deliberately illegal behavior ...; (3) knew facts or had access to information suggesting that their public statements were not accurate ...; or (4) failed to check information that they had a duty to monitor.” Novak, 216 F.3d at 311. It also has been held that scienter can be established by setting forth “facts that constitute circumstantial evidence of either reckless or conscious behavior.” In re Advanta, 180 F.3d at 534-35. The second of the two tests requires a reckless statement, which is a “statement ... involving not merely simple, or even inexcusable negligence, but an extreme departure from the standards of ordinary care, and which presents a danger of" }, { "docid": "23122802", "title": "", "text": "of recklessness, a sufficiently culpable mental state, Teamsters had successfully alleged scien-ter as to Dynex and Merit. Id. The district court denied defendants’ motion for reconsideration, but certified the issue for an interlocutory appeal. In re Dynex Capital, Inc. Sec. Litig., No. 05-civ-1897, 2006 WL 1517580 (S.D.N.Y. June 2, 2006). DISCUSSION We review the denial of a motion to dismiss the complaint de novo, accepting the truth of each factual allegation it contains. United States v. Baylor Univ. Med. Ctr., 469 F.3d 263, 267 (2d Cir.2006). While we normally draw reasonable inferences in the non-movant’s favor on a motion to dismiss, see id., section 21D(b)(2) of the PSLRA, which governs scienter pleading in securities fraud actions, establishes a more stringent rule for inferences involving scienter, and requires that a plaintiffs complaint “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). Congress did not define “strong inference,” but the Supreme Court has recently held that, to qualify as “strong,” an “inference of scienter must be more than merely plausible or reasonable—it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., — U.S. —, 127 S.Ct. 2499, 2504-05, 168 L.Ed.2d 179 (2007). The Court has also defined the required state of mind as “a mental state embracing intent to deceive, manipulate, or defraud.” Id. at 2507 (internal quotation marks and citation omitted). In addition to actual intent, the Second Circuit has also concluded that recklessness is a sufficiently culpable mental state in the securities fraud context. See Novak v. Kasaks, 216 F.3d 300, 308-09 (2d Cir.2000). In Novak, we also summarized our case law in this area as suggesting that the required strong inference may arise where the complaint sufficiently alleges that the defendants: (1) benefitted in a concrete and personal way from the purported fraud; (2) engaged in deliberately illegal behavior; (3) knew facts or had access to information suggesting that their public statements were not accurate; or (4) failed to check" }, { "docid": "20263154", "title": "", "text": "a material omission in failing to correct such statements in that context.” In re SmarTalk, 124 F.Supp.2d 527, 543 (S.D.Ohio 2000). See also Barrie v. Intervoice-Brite, Inc., 409 F.3d 653, 656 (5th Cir.2005). See ¶¶ 9, 182-85,187, 253-57, 259. The Individual Defendants are also alleged to be liable under the “group-pleading doctrine,” which permits a plain tiff, “for pleading purposes only, to rely on a presumption that statements in prospectuses, registration statements, annual reports, press releases, or other group-published information, are the collective work of those individuals with direct involvement in the everyday business of the company.” In re BISYS Sec. Litig., 397 F.Supp.2d 430, 438 (S.D.N.Y.2005) (internal quotations and citations omitted). See also In re Refco, Inc. Sec. Litig., 503 F.Supp.2d 611, 641 (S.D.N.Y.2007) (same). In light of the allegations against the Individual Defendants for having made or being otherwise hable misleading statements, they have been adequately impleaded in the Complaint. VI. PLAINTIFFS ADEQUATELY ALLEGED SCIENTER The requisite state of mind in 10b-5 claims is “intent to deceive, manipulate, or defraud.” Tellabs, Inc. v. Makor Issues & Rights Ltd., 551 U.S. 308, 319, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (citation omitted). The Second Circuit has provided at least five non-exclusive examples of how a plaintiff may adequately plead seienter-namely, allegations that the defendants: “(1) benefited in a concrete and personal way from the purported fraud; (2) engaged in deliberately illegal behavior; (3) knew facts or had access to information suggesting that their public statements were not accurate; or (4) failed to check information they had a duty to monitor,” Novak v. Kasaks, 216 F.3d 300, 311 (2d Cir.2000) (internal cross references omitted), or (5) “ignored obvious signs of fraud.” Id. at 308. See also Chill v. General Elec. Co., 101 F.3d 263, 269 (2d Cir.1996) (“An egregious refusal to see the obvious, or to investigate the doubtful, may ... give rise to an inference of recklessness.”) (internal citations and quotations omitted); Heller v. Goldin Restructuring Fund, 590 F.Supp.2d 603, 619 (S.D.N.Y.2008) (same). The inquiry on scienter “is whether all of the facts alleged, taken collectively, give rise to" }, { "docid": "8180134", "title": "", "text": "4.) . Whether trading was unusual or suspicious turns on factors including (1) the amount of net profits realized from the sales; (2) the percentages of holdings sold; (3) the change in volume of insider defendants sales; (4) the number of insider defendants selling; (5) whether sales occurred soon after statements defendants are alleged to know to be misleading; (6) whether sales occurred shortly before corrective disclosures or materialization of the alleged risk; and (7) whether sales were made pursuant to trading plans such as Rule 10b5-l plans. See In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 74-75 (2d Cir.2001); In re SLM, 740 F.Supp.2d at 557-58; In re Gildan Activewear, 636 F.Supp.2d at 270-72; In re AXIS Capital Holdings Ltd., Sec. Litig., 456 F.Supp.2d 576, 596 (S.D.N.Y.2006). . A plaintiff may also allege that defendants engaged in deliberate misconduct, see In re Citigroup, 753 F.Supp.2d at 233, or that \"defendants failed to check information they had a duty to monitor,” Gissin, 739 F.Supp.2d at 503; but plaintiffs here make no such allegations or arguments. . Plaintiff asserts that \"[t]here is no fixed formula for pleading scienter. Non-exclusive examples include that defendants (1) benefit-ted in a concrete and personal way ...; (2) engaged in deliberately illegal behavior; (3) knew or had access to information that their public statements were not accurate; (4) failed to check information ...; or (5) ignored obvious signs of fraud.” (Pl.’s Opp’n at 12.) Plaintiff lists accurate factors; however, but for the first factor, which is simply motive and opportunity, these are the factors courts look to in judging scienter under the strong circumstantial evidence prong — they are not themselves separate tests for scienter. See In re Lehman Bros. Sec. & Erisa Litig., 799 F.Supp.2d 258, 293-94, 2011 WL 3211364, at *21 (S.D.N.Y. July 27, 2011); In re Wachovia Equity Sec. Litig., 753 F.Supp.2d 326, 348, 351 (S.D.N.Y.2011) (noting that these factors, though \"an alternate [five]-part formulation,” have not changed the Second Circuit’s \"the two-prong scienter standard ..., mindful that litigants need not rely on magic words such as 'motive and opportunity’ with respect" }, { "docid": "23122803", "title": "", "text": "of scienter must be more than merely plausible or reasonable—it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., — U.S. —, 127 S.Ct. 2499, 2504-05, 168 L.Ed.2d 179 (2007). The Court has also defined the required state of mind as “a mental state embracing intent to deceive, manipulate, or defraud.” Id. at 2507 (internal quotation marks and citation omitted). In addition to actual intent, the Second Circuit has also concluded that recklessness is a sufficiently culpable mental state in the securities fraud context. See Novak v. Kasaks, 216 F.3d 300, 308-09 (2d Cir.2000). In Novak, we also summarized our case law in this area as suggesting that the required strong inference may arise where the complaint sufficiently alleges that the defendants: (1) benefitted in a concrete and personal way from the purported fraud; (2) engaged in deliberately illegal behavior; (3) knew facts or had access to information suggesting that their public statements were not accurate; or (4) failed to check information they had a duty to monitor. Id. at 311 (internal citations omitted). Appellants Dynex and Merit contend that the district court’s finding that the Teamsters’ complaint did not raise a strong inference of scienter with regard to the individual defendants, Potts and Bene-detti, precludes as a matter of law the finding of such an inference with regard to the corporate defendants. Thus, they argue that the refusal to dismiss as against Dynex and Merit rests on a legal error; namely, the district court’s belief that “[a] plaintiff may, and in this case has, alleged scienter on the part of a corporate defendant without pleading scienter against any particular employees of the corporation.” Dynex I at *10. To accept this view, defendants contend, would be tantamount to endorsing a doctrine of “collective scien-ter,” which posits, contrary to “settled principles of corporate liability,” that a corporate entity can act with an intent that is not derivative of the intent of one of its agents. Appellants’ Br. at 17. In support of their position, defendants point to" }, { "docid": "15870353", "title": "", "text": "v. Kenny, 952 F.2d 702, 714 (3d Cir.1991) (pleading a “complaint is not a mix and match game”). Furthermore, there must be more than conclusory allegations of motive and opportunity, see, e.g., Mortensen v. Ameri-Credit Corp., 123 F.Supp.2d 1018 (N.D.Tex.2000); Livent, Inc. Sec. Litig., 78 F.Supp.2d 194 (S.D.N.Y.1999), or a mere set of assertions “from which an inference of [motive and opportunity] rationally could be drawn.” Tellabs, 127 S.Ct. at 2510 (emphasis in original). Rather, a strong inference of motive and opportunity may arise only if the complaint sufficiently alleges that the defendants: (1) “benefit-ted in a concrete and personal way from the purported fraud”; (2) “engaged in deliberately illegal behavior”; (3) “knew facts or had access to information suggesting that their public statements were not accurate”; or (4) “failed to check information they had a duty to monitor.” Novak v. Kasaks, 216 F.3d 300, 311 (2d Cir.2000); see Wilson v. Bernstock, 195 F.Supp.2d 619, 633 (D.N.J.2002) (“Motive entails allegations that the individual corporate defendants stood to gain in a concrete and personal way from one or more of the allegedly false or misleading statements and wrongful nondisclosures.... [M]otive and opportunity ‘like all other allegations of scienter must now be supported by facts stated with particularity and must give rise to a strong inference of scienter’ ”) (quoting Advanta, 180 F.3d at 535); Cybershop.com Sec. Litig., 189 F.Supp.2d 214 (D.N.J.2002). Under this pleading standard, a plaintiff may not rely on facts indicating that the defendant had certain goals or aspirations (or sought to engage in the industry practices) common to the law-abiding business community, since such goals or practices cannot amount to a valid motive for the purposes of showing scienter. See GSC, 368 F.3d at 237 (“ ‘Motives that are generally possessed by most corporate directors and officers do not suffice’ ”) (quoting Kalnit v. Eichler, 264 F.3d 131, 139 (2d Cir.2001)) (lack of capitalization restored); San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., Inc., 75 F.3d 801, 814 (2d Cir.1996) (“[A] company’s desire to maintain a high bond or credit rating is an insufficient" }, { "docid": "20601358", "title": "", "text": "to them.” Id. at 309. The Second Circuit has identified four types of allegations that may be sufficient to allege scienter. In addition to allegations that the defendants “(1) benefited in a concrete and personal way from the purported fraud,” or “(2) engaged in deliberately illegal behavior,” they include allegations that defendants “(3) knew facts or had access to information suggesting that their public statements were not accurate; or (4) failed to check information they had a duty to monitor.” ECA, 553 F.3d at 199 (citation omitted). If plaintiffs rely on allegations that the defendants had access to facts contradicting their public statements, plaintiffs must “specifically identify the reports or statements containing this information.” Teamsters Local 445 Freight Div. Pension Fund v. Dynex Capital Inc., 531 F.3d 190, 196 (2d Cir.2008) (citation omitted) (“Teamsters ”). A plaintiff may also rely on confidential sources to satisfy the pleading requirements of the PSLRA and Rule 9(b). Novak, 216 F.3d at 314. In such a situation, the confidential sources must be “described in the complaint with sufficient particularity to support the probability that a person in the position occupied by the source would possess the information alleged.” Id. 3. The Consolidated Complaint’s Exchange Act Allegations The consolidated complaint identifies two categories of allegedly material false statements. They are statements that failed to disclose that (1) the Hatch Study was inaccurate when released and grew increasingly obsolete, as NovaGold’s internal capital cost estimates for the Project were materially higher than the Hatch Study’s estimate and ultimately exceeded US$ 4 billion, rendering the Project nonviable; and (2) the Hatch Study was not “the” final feasibility study performed on Galore Creek, nor was it a “bankable” feasibility study. a. Statements Regarding the Project’s Costs and its Economic Viability The Hatch Study was announced to the public in the October 25 Press Release, with its capital cost estimate for the Project of US$ 1.8 billion or C$ 2.2 billion. The announcement indicated that the estimate had a 15% level of accuracy for cost increases and confirmed the economic viability of the Project. The study and its figures" }, { "docid": "9595773", "title": "", "text": "v. Dabit, 547 U.S. 71, 81-82, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006), quoting Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 345, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005); 15 U.S.C. § 78u-4(b)(2). Particularity requires the plaintiff to “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Stevelman v. Alias Research, Inc., 174 F.3d 79, 84 (2d Cir.1999) (internal quotation marks and citation omitted); Anatian v. Coutts Bank (Switzerland) Ltd., 193 F.3d 85, 88 (2d Cir.1999); see also ECA and Local 134 IBEW Joint Pension Trust of Chicago v. JP Morgan Chase Co., 553 F.3d 187, 199 (2d Cir.2009) (“At least four circumstances may give rise to a strong inference of the requisite scienter: where the complaint sufficiently alleges that the defendants (1) ‘benefitted in a concrete and personal way from the purported fraud’; (2) ‘engaged in deliberately illegal behavior’; (3) ‘knew facts or had access to information suggesting that then-public statements were not accurate’; or (4) ‘failed to check information they had a duty to monitor’ ”), quoting Novak v. Kasaks, 216 F.3d 300, 311 (2d Cir.2000). A court considering a motion to dismiss “is normally required to look only to the allegations on the face of the complaint.” Roth, 489 F.3d at 509. However, “[i]n certain circumstances, the court may permissibly consider documents other than the complaint in ruling on a motion under Rule 12(b)(6).” Id. Courts “may consider any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference, legally required public disclosure documents filed with the SEC, and documents possessed by or known to the plaintiff and upon which it relied in bringing the suit.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). “If ... allegations of securities fraud conflict with the plain language of the publicly filed disclosure documents, the disclosure documents control, and the court need not accept the allegations as true.” In re Optionable Sec. Litig., 577 F.Supp.2d 681, 692" }, { "docid": "5983046", "title": "", "text": "taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard.’ ” In re Magnum Hunter Res. Corp. Sec. Litig., No. 13 Civ. 2668(KBF), 2014 WL 2840152, at *17 (S.D.N.Y. June 23, 2014) (emphasis in original) (citing Tellabs, 551 U.S. at 322-23, 127 S.Ct. 2499). A plaintiff may establish scien-ter by alleging facts that either (1) show that the defendant had both the “motive 'and opportunity” to commit the alleged fraud, or (2) “constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290-91 (2d Cir.2006); see also, e.g., Ho v. Duoyuan Global Water, Inc., 887 F.Supp.2d 547, 574 (S.D.N.Y.2012). When a plaintiff fails to allege a motive to commit fraud, the plaintiffs allegations that indicate a defendant’s recklessness “must be correspondingly greater.” Kalnit, 264 F.3d at 142 (internal citations omitted); accord S. Cherry St., LLC v. Hennessee Grp. LLC, 573 F.3d 98, 109 (2d Cir.2009). Here, Plaintiffs solely proceed on the theory that DTTC acted recklessly with respect to the falsity of its statements. To state a claim based on recklessness, plaintiffs may either specifically allege defendants’ knowledge of facts or access to information contradicting defendants’ public statements, or allege that defendants failed to check information that they had a duty to monitor. In re Longtop Fin. Techs. Ltd. Sec. Litig., 910 F.Supp.2d 561, 574 (S.D.N.Y.2012) (“Longtop /”) (citing In re Gildan Activewear, Inc. Sec. Litig., 636 F.Supp.2d 261, 272 (S.D.N.Y.2009)). To the extent that plaintiffs assert that defendants had access to contrary facts, the complaint must “specifically identify the reports or statements containing this information.” Id. at 574-75 (citing Teamsters Local 445 Freight Div. Pension Fund v. Dynex Capital Inc., 531 F.3d 190, 197 (2d Cir.2008) (quoting Novak, 216 F.3d at 309)); In re IMAX Sec. Litig., 587 F.Supp.2d 471, 483-84 (S.D.N.Y.2008). Nonetheless, it is well-settled that “fraud by hindsight” is not a cognizable theory of relief; “fraud is always obvious in retrospect, but it is not reckless to lack clairvoyance.” Longtop I, 910 F.Supp.2d at 579; see also, e.g., Meridian" }, { "docid": "13056844", "title": "", "text": "corporation to appear profitable and the desire to keep stock prices high to increase officer compensation,” do not establish the requisite scienter. Id. Typically, a plaintiff must show that officers made false statements in order to sell their own shares at a profit. Id. “Sufficient motive ■allegations must entail concrete benefits that could be realized by one or more of the false statements and wrongful nondis-closures alleged.” In re SLM Corp. Sec. Litig., 740 F.Supp.2d 542, 557 (S.D.N.Y.2010). Plaintiffs must allege a “unique connection between the fraud and the [benefit].” ECA, 553 F.3d at 201 n. 6. Alternatively, if a plaintiff pleads scienter under the “strong circumstantial evidence” prong, he or she must “specifically allege [the] defendants’ knowledge of facts or access to information contradicting their public statements.” Novak, 216 F.3d at 308. Further, “[w]here plaintiffs contend [that] defendants had access to contrary facts, they must specifically identify the reports or statements containing this information.” Id. at 309 (internal citation omitted); accord ECA, 553 F.3d at 198 (under the alternative “strong circumstantial evidence” prong, circumstances that “may give rise to a strong inference of the requisite scienter” include allegations that defendants “engaged in deliberately illegal behavior,” or “knew facts or had access to information suggesting that their public statements were not accurate,” or “failed to check information that they had a duty to monitor”) (internal citation omitted). “Regardless of the manner in which a plaintiff attempts to plead scien-ter, at the end of its evaluation, this Court must be convinced that the inference of scienter is at least as compelling as any competing inferences.” Fort Worth Employers’ Ret. Fund v. Biovail Corp., 615 F.Supp.2d 218, 225 (S.D.N.Y.2009) (internal quotation marks omitted). With regard to the strength of the inference, the inference of scienter must be “more than merely plausible or reasonable — it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent.” Tellabs, Inc., 127 S.Ct. at 2504-05. Thus, the Supreme Court has held that the PSLRA’s strong inference standard is satisfied “[w]hen the allegations are accepted as true and taken collectively ... a" }, { "docid": "5244310", "title": "", "text": "RMB 3 million (the high end of the revision estimate), these revenues still increased by 56% from the third quarter of 2003. . The November 4, 2004 press release reported third quarter total revenues of RMB 135 million. Compl. ¶ 28. The January 18, 2005 press release stated that third quarter revenues needed to be reduced by RMB 2-3 million, and projected fourth quarter total revenues of RMB 117-121 million. Compl. ¶ 32. . In Novak, the Second Circuit appeared to express some dissatisfaction with the Acito formulation: \"Although litigants and lower courts need and should not employ or rely on magic words such as 'motive and opportunity,’ we believe that our prior case law may be helpful in providing guidance as to how the ‘strong inference’ standard may be met.” 216 F.3d at 311. As a seemingly alternative approach, Novak suggested that \"the inference [of scienter] may arise when the complaint sufficiently alleges that the defendants: (1) benefitted in a concrete and personal way from the purported fraud; (2) engaged in deliberately illegal behavior; (3) knew facts or had access to information suggesting that their public statements were not accurate; or (4) failed to check information they had a duty to monitor.” Id. (citations omitted). But subsequent Second Circuit decisions have employed the language of the two-pronged standard in Acito, including \"motive and opportunity.” See, e.g., In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 74 (2d Cir.2001)(\"Plaintiffs can plead scienter by (a) alleging facts demonstrating that defendants had both the motive and an opportunity to commit fraud or (b) otherwise alleging facts to show strong circumstantial evidence of defendants’ conscious misbehavior or recklessness.”); Kalnit v. Eichler, 264 F.3d 131, 138-39 (2d Cir.2001); In re Carter-Wallace, Inc. Sec. Litig., 220 F.3d 36, 39 (2d Cir.2000); Rothman v. Gregor, 220 F.3d 81, 90 (2d Cir.2000). In Rothman, the Second Circuit interpreted Novak in the following way: \"As Novak explains, what is required when endeavoring to plead facts supporting a strong inference of scienter by showing motive and opportunity is not a bare invocation of magic words such as ‘motive and" }, { "docid": "19470554", "title": "", "text": ", 277 F.Supp.3d at 664 (quoting Hochfelder , 425 U.S. at 193 n.12, 96 S.Ct. 1375 ; ECA , 553 F.3d at 198 ). A securities fraud claim premised on recklessness requires \"defendants' knowledge of facts or access to information contradicting their public statements.\" Id. (quoting Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC , 797 F.3d 160, 177 (2d Cir. 2015) ) \"To establish the requisite 'strong inference' of scienter, plaintiffs must allege 'facts [i] showing that the defendants had both motive and opportunity to commit the fraud or [ii] constituting strong circumstantial evidence of conscious misbehavior or recklessness.\" Friedman v. Endo Int'l PLC , No. 16 Civ. 3912 (JMF), 2018 WL 446189, at *4 (S.D.N.Y. Jan. 16, 2018) (quoting ATSI Commc'ns , 493 F.3d at 99 ). To prove scienter via evidence of motive and opportunity to defraud, a plaintiff must show that the defendant (i) \"benefited in a concrete and personal way from the purported fraud,\" (ii) \"engaged in deliberately illegal behavior,\" (iii) \"knew facts or had access to information suggesting that their public statements were not accurate,\" or (iv) \"failed to check information they had a duty to monitor.\" S. Cherry Street, LLC v. Hennessee Grp. LLC , 573 F.3d 98, 110 (2d Cir. 2009) (quoting Novak v. Kasaks , 216 F.3d 300, 311 (2d Cir. 2000) ). And to establish a corporation's liability for securities fraud, a plaintiff must allege facts giving rise to a strong inference that the scienter of an individual may be imputed to the corporation. See Teamsters Local 445 Freight Div. Pension Fund v. Dynex Capital Inc. , 531 F.3d 190, 195 (2d Cir. 2008). 2. Analysis a. Plaintiffs' Section 10(b) Claims As an analytical structure, the Court's prior opinion in this case separated the alleged misstatements and omissions temporally. For additional precision, the Court addresses each alleged misstatement or category of misstatement in turn. Ultimately, despite additional verbiage, the SAC exhibits the same pleading deficiencies, and is destined for the same fate, as its predecessor. i. Commissary Switch Omissions The Court previously dismissed Plaintiffs' claims premised on" }, { "docid": "15226368", "title": "", "text": "to the level of the considerably higher' “most significant factors” standard. Therefore, the alleged omissions are not actionable under Item 503. II. Scienter To summarize, plaintiffs have plausibly alleged materially misleading statements about BHP’s commitment to safety and risk management controls, and materially misleading statements by Mackenzie after the incident regarding the chemical composition of the tailings.. We now turn to defendants’ arguments that plaintiffs have not adequately alleged scienter. “[T]o plead' scienter, plaintiffs must ‘state with particularity facts \"giving rise to a strong inference that the defendant acted with the' required ' state of mind,’ as required by the language of the [Exchange] Act itself.” Novak, 216 F.3d at 311. Plaintiffs must allege “a mental state embracing intent to deceive, manipulate, or defraud.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). In this circuit, “recklessness is a sufficiently culpable mental state.” ECA, 553 F.3d at 198. “[T]he inference may arise where the complaint sufficiently alleges that the defendants: (1) benefitted in a concrete and personal way from the purported fraud; (2) engaged in deliberately illegal behavior; (3) knew facts or had access to information suggesting that their public statements were not accurate; or (4) failed to check information they had a duty to monitor.” Novak, 216 F.3d at 311 (citations omitted); see also Kalnit v. Eichler, 264 F.3d 131, 138 (2d Cir. 2001) (“A plaintiff can establish this intent either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” (internal quotation marks omitted)). “[T]o qualify as ‘strong,’ an ‘inference of scienter must be more than merely plausible or reasonable—it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent.’ ” Teamsters Local 445 Freight Div. Pension Fund v. Dynex Capital Inc., 531 F.3d 190, 194 (2d Cir. 2008) (quoting Tellabs, 551 U.S. at 314, 127 S.Ct. 2499). Here, plaintiffs do not allege motive or that defendants received a concrete and personal" }, { "docid": "3899490", "title": "", "text": "542, 550-51 (6th Cir.1999)). The District of Columbia Circuit has not yet provided guidance on this issue. In re Interbank Funding Corp. Sec. Litig., 329 F.Supp.2d at 90. Under the “motive and opportunity test,” it has been held that scienter is properly alleged when a complaint posits that the defendants “(1) benefitted in a concrete and personal way from the purported fraud ...; (2) engaged in deliberately illegal behavior ...; (3) knew facts or had access to information suggesting that their public statements were not accurate ...; or (4) failed to check information that they had a duty to monitor.” Novak, 216 F.3d at 311. It also has been held that scienter can be established by setting forth “facts that constitute circumstantial evidence of either reckless or conscious behavior.” In re Advanta, 180 F.3d at 534-35. The second of the two tests requires a reckless statement, which is a “statement ... involving not merely simple, or even inexcusable negligence, but an extreme departure from the standards of ordinary care, and which presents a danger of misleading buyers or sellers that is either known to the defendant or is so obvious that the actor must have been aware of it.” Id. at 535 (quoting McLean v. Alexanders, 599 F.2d 1190, 1197 (3d Cir.1979) (internal quotation marks omitted)). No matter which of the two standards cited above is applied, it is well established “that a pleading of scienter may not rest on a bare inference that a defendant ‘must have had knowledge of the facts.’ ” In re Advanta, 180 F.3d at 539 (quoting Greenstone v. Cambex Corp., 975 F.2d 22, 26 (1st Cir.1992)). Here, the plaintiffs contend that their complaint makes clear that Phoenix “published statements when they knew facts or had access to information suggesting that their public statements were inaccurate.” Pis.’ Opp’n at 37; see Compl. ¶¶ 42, 52-55, 69, 80. Thus, posits the plaintiffs, these false statements, were, at a minimum, reckless statements that demonstrate scienter. Pis.’ Opp’n at 37. Moreover, the plaintiffs opine that they have also demonstrated sufficient motive and opportunity, as their complaint clearly states" }, { "docid": "20601357", "title": "", "text": "also do not ordinarily constitute a motive to defraud the shareholders. ECA, 553 F.3d at 200. To prevail by showing “circumstantial evidence of conscious misbehavior or recklessness,” where there is no showing of motive and opportunity, “the strength of the circumstantial allegations must be correspondingly greater.” Id. at 198-99 (citation omitted). Conscious misbehavior “encompasses deliberate illegal behavior.” Novak v. Kasaks, 216 F.3d 300, 308 (2d Cir.2000). Recklessness, meanwhile, requires “an extreme departure from the standards of ordinary care to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.” ECA, 553 F.3d at 198. “An egregious refusal to see the obvious, or to investigate the doubtful” may also comprise reckless behavior. Novak, 216 F.3d at 308 (citation omitted). “Under such circumstances, defendants knew or, more importantly, should have known that they were misrepresenting material facts related to the corporation.” Id. Company officials “need not be clairvoyant” or “anticipate[ ] future events,” however, and are only obligated to reveal “material facts reasonably available to them.” Id. at 309. The Second Circuit has identified four types of allegations that may be sufficient to allege scienter. In addition to allegations that the defendants “(1) benefited in a concrete and personal way from the purported fraud,” or “(2) engaged in deliberately illegal behavior,” they include allegations that defendants “(3) knew facts or had access to information suggesting that their public statements were not accurate; or (4) failed to check information they had a duty to monitor.” ECA, 553 F.3d at 199 (citation omitted). If plaintiffs rely on allegations that the defendants had access to facts contradicting their public statements, plaintiffs must “specifically identify the reports or statements containing this information.” Teamsters Local 445 Freight Div. Pension Fund v. Dynex Capital Inc., 531 F.3d 190, 196 (2d Cir.2008) (citation omitted) (“Teamsters ”). A plaintiff may also rely on confidential sources to satisfy the pleading requirements of the PSLRA and Rule 9(b). Novak, 216 F.3d at 314. In such a situation, the confidential sources must be “described in the complaint with sufficient particularity" } ]

[ { "docid": "21476958", "title": "", "text": "WOOD, Circuit Judge. James Sura owned a World War II Beretta, which he kept in his home. As far as this record reveals, Sura never attempted to use the gun, nor did he own ammunition for it. Sura was, however, a convicted felon, and so when the Beretta was found in his home in 2003, he wound up in hot water, charged with being a felon unlawfully in possession of a firearm. See 18 U.S.C. § 922(g)(1). In early 2004, Sura agreed to plead guilty; his plea included a clause waiving his right to appeal his conviction and sentence. The district court accepted the plea and gave him a 30-month sentence. Sura now wants to challenge that sentence, but in order to do so, he first must convince us that his appeal waiver should be set aside. If he can do so, he would like to challenge the district court’s application of the advisory Sentencing Guidelines, which call in § 2K2.1(b)(2) for a reduced sentence for a felon who possesses a firearm used solely for sporting or collection purposes. Sura’s primary argument proceeds on the assumption that we can perform surgery on his plea agreement, excising only paragraph 30, which contains the waiver of his right to appeal. But we have often held that this is not an option. See, e.g., United States v. Lockwood, 416 F.3d 604, 607 (7th Cir.2005); United States v. Cieslowski, 410 F.3d 353, 363-64 (7th Cir.2005); United States v. Whitlow, 287 F.3d 638, 640 (7th Cir.2002). Sura asks in the alternative, however, to be relieved of the plea altogether, on the ground that he entered into it involuntarily. Approaching the appeal on the latter basis, as we must, we conclude that Sura has shown that he did not knowingly and voluntarily accept the plea (including its waiver of his appellate rights) and thus that the district court plainly erred when it accepted the plea. We therefore vacate the plea and remand this case to the district court for further proceedings. I Until Sura turned 49, in 1982, he apparently had no run-ins with the law." } ]

[ { "docid": "22873397", "title": "", "text": "enhanced maximum statutory penalty of 30 years, rendering any Collins error harmless. See 21 U.S.C. §§ 841(b)(1)(C), 851. Finally, the convictions of V. Sparks and W. Sparks on the Count 10 substantive offense of possession with intent to distribute 5 grams or more of crack places them under § 841(b)(1)(B) for statutory sentencing purposes. Their concurrent sentences of 360 months and 200 months, respectively, on each count of conviction, fall within the 5 to 40 year range provided by § 841(b)(1)(B), rendering harmless any Collins error as to the Count 1 crack conspiracy. See United States v. Ellis, 326 F.3d 593, 599-600 (4th Cir.2003) (concluding, under plain error review, that sentence in excess of statutory maximum authorized for one count did not affect substantial rights where defendant received valid equal or longer concurrent sentences on other counts). In fact, W. Sparks’s concurrent sentences of 200 months fall below the 20 year maximum in the default provision — § 841(b)(1)(C). . In Promise, Judge Wilkins explained that an \"aggravated drug trafficking offense” is one that \"involves a specific threshold drug quantity,” which he in turn defined as those quantities of drugs a finding of which subjects a defendant to the statutory ranges contained in either § 841(b)(1)(A) or (b)(1)(B). See 255 F.3d at 152 n. 1. . To the extent that Mathis and Witherspoon also contend that Collins requires the jury, rather than the sentencing judge, to determine, for Sentencing Guidelines purposes, drug quantities above the threshold statutory quantity, this contention is erroneous. Collins does not implicate the manner in which a district court calculates a defendant’s advisory Sentencing Guidelines range. Rather, it simply requires a jury to determine the specific quantity of drugs “attributable to” each conspiracy defendant on trial for the purpose of establishing the applicable statutory range under § 841(b). See infra note 20. .In Pinkerton, the Supreme Court examined the potential criminal liability of one conspirator for the acts of another. The Court concluded that acts in furtherance of the conspiracy are \"attributable to the others for the purpose of holding them responsible for the substantive offense,”" }, { "docid": "22873369", "title": "", "text": "conspiracy as a whole, after being instructed that “the amount of controlled substances you will need to determine ... is not the amount a single defendant may have been involved with, but rather the amount of controlled substances involved in the conspiracy as a whole.” Supp. J.A. 47. Thus, absent an individualized determination of drug quantity, the verdict (attributing 50 grams or more of crack to the “conspiracy as a whole”) exposed Mathis to a statutory maximum sentence of life, and a mandatory minimum sentence of 10 years. 21 U.S.C. § 841(b)(1)(A). Four years thereafter, in 2005 in Collins, “we addressed the issue of whether a defendant found guilty of a conspiracy to violate § 841(a) should be sentenced under § 841(b) by considering the amount of drugs distributed by the entire conspiracy,” or whether, on the other hand, the statutory sentencing range specified by § 841(b) depends upon the quantity of drugs attributable to the individual defendant. See United States v. Foster, 507 F.3d 233, 250 (4th Cir.2007) (summarizing Collins ). The Collins decision ruled that a jury must utilize the principles outlined in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), to determine the specific quantity of drugs “attributable to” each individual defendant for the purpose of setting a threshold drug quantity under § 841(b). Collins, 415 F.3d at 314. In Collins, as in this case, the defendant appealed his conviction for conspiracy to distribute 50 grams or more of crack, after the trial court failed to instruct the jury to determine the quantity of drugs attributable to each individual defendant. See 415 F.3d at 311-12. In evaluating the contention that such failure to instruct was erroneous, we first examined our 1993 ruling in United States v. Irvin, 2 F.3d 72, 77 (4th Cir.1993), that “the most reasonable interpretation of the relevant statutory provisions [in §§ 841(b) and 846] requires a sentencing court to assess the quantity of narcotics attributable to each coconspirator by relying on the principles set forth in Pinkerton.” Accordingly, we recognized in Collins that, under the Irvin precedent," }, { "docid": "22255157", "title": "", "text": "of § 924(c)(1)(A) prohibits consecutive sentences where the underlying offense carried a mandatory minimum that exceeded the minimum applicable to the firearm offense. He contends that the imposition of consecutive sentences therefore exceeded the statutory maximum sentence and the applicable guidelines range. The government argues that the appeal is barred by the terms of the waiver provision in the plea agreement. Upon review of the record and the parties’ briefs, we conclude that the plain language of the statute mandates consecutive sentences and Segarra’s claim is barred by the appeal waiver. Therefore, we dismiss the appeal. We review questions of statutory interpretation de novo. United States v. Krawczak, 331 F.3d 1302, 1305 (11th Cir.2003). “The first rule in statutory construction is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute. If the statute’s meaning is plain and unambiguous, there is no need for further inquiry.” United States v. Fisher, 289 F.3d 1329, 1337-38 (11th Cir.2002) (internal quotation and citation omitted). We will not “look at one word or term in isolation, but instead [will] look to the entire statutory context.” United States v. Silva, 443 F.3d 795, 798 (11th Cir.2006) (citing United States v. DBB, Inc., 180 F.3d 1277, 1281 (11th Cir.1999)). We interpret a statute in a manner consistent with the plain language of the statute, unless doing so would lead to an absurd result. Id. Segarra contends that the imposition of consecutive sentences was improper and resulted in a sentence that exceeded the statutory maximum. He claims, therefore, that his challenge to his sentence is not barred by the appeal waiver. In this case, however, Segarra faced a statutory maximum sentence of life imprisonment. See 21 U.S.C. § 841(b)(1)(A). Thus, Segarra’s 180-month sentence is well within the statutory maximum, and this argument is barred by the appeal waiver. The plea agreement, however, also permits Segarra to appeal if the sentence imposed exceeds the guidelines range as determined by the court. Segarra con tends that he may therefore appeal because the consecutive sentences resulted in an overall term of" }, { "docid": "14870472", "title": "", "text": "criminal history category, the result was a range of fifty-seven to seventy-one months. Again, there was no mention of any statutory minimum sentence affecting this Guideline range. In the course of defendant’s plea hearing, the government introduced the idea of using the relevant-conduct quantity to invoke the five-year mandatory minimum sentence in § 841(b)(1)(B). Defense counsel argued that this aggregate of both offense and collateral conduct was relevant only to the Guideline calculations for which it had been developed, and that the statutory sentencing directives turn solely on the violation underlying the conviction. The district court left the matter undecided pending preparation of the presentence report, and defendant stood on his plea. At sentencing, defense counsel preserved his objection to the consideration of collateral drug quantities for purposes of the mandatory minimum sentence in § 841(b)(1)(B). Counsel conceded that Tenth Circuit law, i.e., United States v. Reyes, 40 F.3d 1148, 1150-51 (10th Cir.1994), sanctioned the procedure, but noted the conflict between our circuit and others on this point. Invoking its fidelity to this circuit’s precedent, the district court held that the statutory minimum applied, leaving a sentencing range of sixty to seventy-one months. The court then imposed a sixty-month sentence, stating its understanding that this was the lowest sentence it could impose in accord with Reyes. Defendant appealed, challenging only the application of the statutory minimum sentence. II. All other circuits to decide the issue have held that the drug quantities triggering the mandatory sentences prescribed in § 841(b) are determined exclusively by reference to the offense of conviction. Guideline constructs such as relevant conduct, which permit broad-ranging consideration of collateral matters, are limited to their designed role in Guideline-range calculations and do not affect the independent determination of the statutory sentencing directives. See, e.g., United States v. Rettelle, 165 F.3d 489, 491 (6th Cir.1999) (following United States v. Winston, 37 F.3d 235, 241 (6th Cir.1994)); United States v. Barnes, 158 F.3d 662, 669 (2d Cir.1998) (following United States v. Darmand, 3 F.3d 1578, 1581 (2d Cir.1993)); United States v. Rodriguez, 67 F.3d 1312, 1324 (7th Cir.1995); United States v." }, { "docid": "19922842", "title": "", "text": "PER CURIAM. Defendant Gregory A. Novosel pled guilty to one count of conspiracy to manufacture and possess more than 100 marijuana plants in violation of 21 U.S.C. §§ 841 and 846, and one count of aiding and abetting the use of a firearm during and in relation to and in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924. He did so pursuant to a plea agreement that included a waiver of his right to appeal. Novosel filed a notice of appeal and the government has now moved to enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir.2004) (en banc) (per curiam). We grant the motion and dismiss the appeal. Under the terms of the plea agreement accepted by the district court, Novosel “knowingly and voluntary waive[d] any right to appeal or collaterally attack any matter in connection with [his] prosecution, conviction or sentence.” Plea Agreement at 7 (filed Oct. 18, 2005). More specifically, he waived “any right to appeal a sentence imposed which is within the guideline range determined appropriate by the court.” Id. The district court sentenced Novosel to sixty months’ imprisonment on each count, to be served consecutively. This sentence was at the statutory mandatory minimum of not less than five years’ imprisonment for each count. No-vosel states in his docketing statement that he seeks to raise on appeal three ineffective assistance of counsel claims, two claims of sentencing error, and a claim that he did not knowingly and voluntarily enter into the plea agreement. In Hahn, this court held that a waiver of appellate rights will be enforced if (1) “the disputed appeal falls within the scope of the waiver of appellate rights;” (2) “the defendant knowingly and voluntarily waived his appellate rights;” and (3) “enforcing the waiver would [not] result in a miscarriage of justice.” 359 F.3d at 1325. The miscarriage-of-justice prong requires the defendant to show (a) his sentence relied on an impermissible factor such as race; (b) ineffective assistance of counsel in connection with the negotiation of the appeal waiver rendered the waiver invalid;" }, { "docid": "2973339", "title": "", "text": "de novo the scope and validity of an appeal waiver, interpreting plea agreements strictly and “ ‘with ambiguities construed against the government.’ ” United States v. Jones, 569 F.3d 569, 571-72 (6th Cir.2009) (quoting United States v. Caruthers, 458 F.3d 459, 470 (6th Cir.), cert. denied, 549 U.S. 1088, 127 S.Ct. 752, 166 L.Ed.2d 582 (2006)). Under United States v. Jones, Thomas’ appeal waiver requires further consideration before we can declare that it waived his right to appeal the denial of the “safety valve” in § 5C1.2 based on its impact for his guideline range. In Jones, the district court determined the defendant’s applicable guideline range as 70 to 87 months, but sentenced the defendant to 180 months based on two consecutive statutory mandatory minimum sentences. Id. at 571-72. Under his plea agreement, the defendant had waived his “ ‘right to appeal any sentence which is at or below the maximum of the guideline range,’ ” but the defendant appealed solely on the grounds that the ten-year mandatory-minimum sentence imposed was unconstitutional. Id. at 572-73 (quoting Plea Agreement ¶ 10). This Court held that the ambiguity in whether a statutory mandatory-minimum sentence that becomes the “guideline sentence” under U.S.S.G. § 5Gl.l(b) “also constitutes the ‘guideline range’ referenced in the plea agreement” must be construed against the government to be a distinct concept. Id. at 572. Faced with “two reasonable interpretations” of § 5G1.1, we concluded that we must construe “above the guideline range” strictly against the government, finding § 5Gl.l(b) contemplates a two-step process: first, the sentencing court must calculate the applicable guideline range-, next, the sentencing court must determine whether the statutory minimum exceeds the top of the properly calculated guideline range. If the statutory minimum is greater than the top of the guideline range, the statutory minimum becomes the guideline sentence. On this reading of § 5Gl.l(b), the guideline range does not become equivalent to, or merge into, the statutory minimum/guideline sentence. Id. We found it particularly telling that other plea agreements avoided this ambiguity by explicitly including a waiver of both guideline range and mandatory-minimum guideline sentence" }, { "docid": "22873402", "title": "", "text": "within the confines of the applicable statutory range. For example, if a properly instructed jury determines the quantity of crack attributable to a § 846 defendant to be 5 grams or more, the sentencing court would be free to find, by a preponderance of the evidence, additional drug quantities for use in determining that defendant’s advisory Guidelines range. And, it would be permissible for such drug quantities to exceed the 5 grams already found by the juiy. The only limitation on the court's drug quantity finding would be that the resulting sentence is circumscribed by the statutory maximum of 40 years (and minimum of 5 years), which was fixed by the jury's threshold drug quantity finding. See § 841(b)(1)(B); Collins, 415 F.3d at 314. . Although the Collins error explained above applied to all five Defendants, the error is harmless as to Brooks, V. Sparks, W. Sparks, and Witherspoon, for the reasons spelled out supra note 556. . Although Mathis's sentence is infirm, his conspiracy conviction is sound. The jury found Mathis guilty of the Count 1 crack conspiracy, and his guilt on this offense is not dependent on a determination of the quantity of drugs involved. See Collins, 415 F.3d at 314. . Brooks, Witherspoon, V. Sparks, and W. Sparks were all sentenced within their applicable statutory ranges. Mathis's sentence erroneously exceeded the applicable default statutory range (up to 20 years) under § 841(b)(1)(C), and we dispose of this issue in Part II hereof. . Section 2D1.1(b)(1) provides for a two level enhancement to the offense level of certain drug offenses, ”[i]f a dangerous weapon (including a firearm) was possessed.” The application note corresponding to this enhancement adds that ”[t]he adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” USSG § 2D1.1(b)(1) cmt. n. 3. . We further reject the contention that With-erspoon's criminal history category of IV over-represents his past criminal history. . Moreover, even if we were to accept V. Sparks’s claim that the 1996 conviction was not relevant conduct, any resulting error was" }, { "docid": "22067744", "title": "", "text": "mandatory life sentence required under 21 U.S.C. § 841(b)(1)); United States v. Benefield, 889 F.2d 1061, 1064 (11th Cir.1989) (rejecting challenge to mandatory minimum sentence for illegal purchase of food stamps at less than face value). Thus, Raad cannot show that his five-year mandatory minimum sentence was grossly disproportionate to his offenses of smuggling three people into the United States simply because the statutory minimum sentence fell at the high end of the guidelines range. Moreover, “a sentence which is not otherwise cruel and unusual [does not] become[] so simply because it is ‘mandatory.’ ” Harmelin, 501 U.S. at 995, 111 S.Ct. 2680 (citing Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 1928-1929, 114 L.Ed.2d 524 (1991)). Accordingly, for the foregoing reasons, we AFFIRM. . Raad also appeals the guidelines calculations. Because we conclude that the district court correctly imposed the statutory mandatory minimum sentence, any error in the guidelines calculations is harmless and we need not address these arguments. Additionally, there is no merit to Raad's claim that his sentence is unconstitutional in light of United States v. Booker, 543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621(2005). Raad was sentenced to the mandatory minimum sentence based on the facts to which he pleaded guilty. United States v. Shelton, 400 F.3d 1325, 1333 n. 10 (11th Cir.2005). . Under 8 U.S.C. § 1324, there is a three-year mandatory minimum sentence for the first or second violation, and a five-year mandatory minimum sentence for any further violations. 8 U.S.C. § 1324(B)(2)(B)(iii). Raad pleaded guilty to smuggling three aliens, and each alien is counted as a separate violation. See United States v. Ortega-Torres, 174 F.3d 1199, 1201 (11th Cir.1999). Thus, Raad faced the minimum five-year term of imprisonment. . We reject the government’s assertion that Raad has waived his right to appeal. The record does not contain a copy of the written plea agreement or a transcript from the change-of-plea hearing demonstrating any waiver of appeal. . Because Raad cannot make a threshold showing of disproportionality, we need not consider the sentences imposed on others. See Reynolds, 215" }, { "docid": "23216213", "title": "", "text": "F.3d 931, 938 (7th Cir.2006); United States v. Re, 419 F.3d 582, 583 (7th Cir.2005)-and we decline this one as well. It is true that the Paladino process is a limited one in which the district court is confined to the original record, along with arguments from the parties. See United States v. Bonner, 440 F.3d 414, 417 (7th Cir.2006); Paladino, 401 F.3d at 484. But the defendants are free to submit vigorous arguments under the § 3553(a) factors, and if any of those points requires new evidence, counsel can make a proffer to the district court. If the argument is promising enough that the district court is inclined to resentence, then we will remand for full resentencing and any new evidence can be introduced at the new sentencing hearing. D. Collins’s counsel’s motion to withdraw The last matter to be settled is the motion to withdraw filed by Collins’s counsel under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel contends that any appeal would be frivolous. Because his brief is facially adequate, we confine our review to the potential issues that he raises, along with those that Collins himself identifies in a response under Circuit Rule 51(b). United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Collins cooperated with the government and was rewarded with a sentence of half the bottom end of his Guidelines range. He received 180 months’ imprisonment, compared to his co-defendants’ sentences ranging from 240 months to life. Collins’s plea agreement, like Cohn’s, contains a waiver of the right to appeal. But as we noted above, a plea agreement that is entered into involuntarily or as a result of ineffec tive assistance from counsel cannot stand, and the waiver of appeal would fall with the plea agreement. Collins contends in his Rule 51(b) submission that he could raise both of these points in an appeal. Either argument, however, would be frivolous. Collins stated in open court that he understood his rights under Federal Rule of Civil Procedure 11, and that his guilty plea was knowing and voluntary. He" }, { "docid": "22873396", "title": "", "text": "focus our analysis of the Collins contention on the quantity of crack (as opposed to cocaine) involved in the conspiracy and attributable to each defendant. . Even if Brooks, W. Sparks, and V. Sparks had pursued a Collins contention on appeal, any Collins error as to them would have been harmless. This is so for Brooks and V. Sparks because they have conceded on appeal that they are personally responsible for 50 grams or more of crack. Brooks asserts that \"the quantity of crack cocaine appropriately attributed to [him] is 50 grams, that quantity which was actually determined by the jury in this matter.” Br. of Appellants 24-25. Similarly, V. Sparks concedes that the \"finding of guilty by the jury of conspiracy to distribute fifty (50) grams or more of crack cocaine is the only finding relating to drug weight that can be used in calculating [his] sentence.” Id. at 44. Additionally, because Informations were filed relating to prior convictions of Brooks and V. Sparks, their sentences of 360 months each were within the applicable enhanced maximum statutory penalty of 30 years, rendering any Collins error harmless. See 21 U.S.C. §§ 841(b)(1)(C), 851. Finally, the convictions of V. Sparks and W. Sparks on the Count 10 substantive offense of possession with intent to distribute 5 grams or more of crack places them under § 841(b)(1)(B) for statutory sentencing purposes. Their concurrent sentences of 360 months and 200 months, respectively, on each count of conviction, fall within the 5 to 40 year range provided by § 841(b)(1)(B), rendering harmless any Collins error as to the Count 1 crack conspiracy. See United States v. Ellis, 326 F.3d 593, 599-600 (4th Cir.2003) (concluding, under plain error review, that sentence in excess of statutory maximum authorized for one count did not affect substantial rights where defendant received valid equal or longer concurrent sentences on other counts). In fact, W. Sparks’s concurrent sentences of 200 months fall below the 20 year maximum in the default provision — § 841(b)(1)(C). . In Promise, Judge Wilkins explained that an \"aggravated drug trafficking offense” is one that \"involves" }, { "docid": "23690291", "title": "", "text": "EBEL, Circuit Judge. Defendant-Appellant Luis Altamirano-Quintero appeals the district court’s imposition of a statutory mandatory minimum ten-year sentence for his drug conspiracy conviction. Altamirano-Quintero asserts that the district court should have applied 18 U.S.C. § 3553(f)’s safety valve to impose a sentence less than the mandatory minimum. The district court, however, determined that Altamirano-Quintero was not eligible for the safety valve because he had not provided the Government with all the information he had concerning his offense. That determination was not in error. Having jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we therefore AFFIRM. I. BACKGROUND Law enforcement officials found over 670 grams of a substance containing methamphetamine in Altamirano-Quintero’s car. As a result, he and a companion, his co-defendant, were arrested for drug trafficking. Altamirano-Quintero pled guilty to one count of conspiring to possess, with the intent to distribute, 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846, in exchange for the Government’s agreement to drop a second charge. Altamirano-Quintero faced a statutory mandatory minimum ten-year sentence for this conviction. See 21 U.S.C. § 841(b)(l)(A)(viii). Altamirano-Quintero had two means available to him to avoid that mandatory minimum ten-year sentence. First, his plea agreement anticipated that he would be debriefed by, and would cooperate with, the Government. If, as a result, he provided the Government with “substantial assistance,” then the Government agreed to move, under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), for a downward departure at sentencing. Such a motion would have enabled the court to impose a sentence below the mandatory minimum ten-year sentence, see 18 U.S.C. § 3553(e), and below the advisory guideline range, see U.S.S.G. § 5K1.1. See United States v. Belt, 89 F.3d 710, 714 n. 5 (10th Cir.1996). Second, Altamirano-Quintero could qualify for the statutory safety valve that 18 U.S.C. § 3553(f) provides from mandatory minimum sentencing. Section 3553(f) permits the district court to disregard a statutory mandatory minimum sentence and instead impose a sentence within the advisory sentencing guidelines range, if the defendant meets five criteria. The only one of those" }, { "docid": "23216214", "title": "", "text": "brief is facially adequate, we confine our review to the potential issues that he raises, along with those that Collins himself identifies in a response under Circuit Rule 51(b). United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Collins cooperated with the government and was rewarded with a sentence of half the bottom end of his Guidelines range. He received 180 months’ imprisonment, compared to his co-defendants’ sentences ranging from 240 months to life. Collins’s plea agreement, like Cohn’s, contains a waiver of the right to appeal. But as we noted above, a plea agreement that is entered into involuntarily or as a result of ineffec tive assistance from counsel cannot stand, and the waiver of appeal would fall with the plea agreement. Collins contends in his Rule 51(b) submission that he could raise both of these points in an appeal. Either argument, however, would be frivolous. Collins stated in open court that he understood his rights under Federal Rule of Civil Procedure 11, and that his guilty plea was knowing and voluntary. He would therefore face an uphill struggle in convincing an appellate court otherwise. United States v. Cieslowski, 410 F.3d 353, 358 (7th Cir.2005). Collins does not say in what way the district court’s colloquy under Federal Rule of Criminal Procedure 11 was insufficient, and we see none. Nor does he give any specifics as to how counsel rendered ineffective assistance in advising him to accept the plea agreement. Indeed, there is no evidence in the record of counsel’s advice, which is why an ineffective assistance claim is more appropriately raised in a collateral proceeding than on direct review. See, e.g., United States v. Harris, 394 F.3d 543, 557 (7th Cir.2005). III. CONCLUSION For these reasons, we AffiRm the convictions of Armstead, Wilson, and Thomas; order a Limited Remand as to the sentences of Armstead and Wilson; Dismiss Cohn’s appeal; and Grant counsel’s motion to withdraw and Dismiss Collins’s appeal. . The defendants do not contend that the government intentionally withheld the letters. . For this reason, Armstead's perfunctory challenge to the sufficiency of the evidence supporting" }, { "docid": "2973340", "title": "", "text": "(quoting Plea Agreement ¶ 10). This Court held that the ambiguity in whether a statutory mandatory-minimum sentence that becomes the “guideline sentence” under U.S.S.G. § 5Gl.l(b) “also constitutes the ‘guideline range’ referenced in the plea agreement” must be construed against the government to be a distinct concept. Id. at 572. Faced with “two reasonable interpretations” of § 5G1.1, we concluded that we must construe “above the guideline range” strictly against the government, finding § 5Gl.l(b) contemplates a two-step process: first, the sentencing court must calculate the applicable guideline range-, next, the sentencing court must determine whether the statutory minimum exceeds the top of the properly calculated guideline range. If the statutory minimum is greater than the top of the guideline range, the statutory minimum becomes the guideline sentence. On this reading of § 5Gl.l(b), the guideline range does not become equivalent to, or merge into, the statutory minimum/guideline sentence. Id. We found it particularly telling that other plea agreements avoided this ambiguity by explicitly including a waiver of both guideline range and mandatory-minimum guideline sentence appeals. Id. at 572-73. Thus, because the defendant’s guideline sentence of 180 months exceeded his applicable guideline range of 70 to 87 months that the district court had calculated prior to considering the statutory mandatory mínimums, we held that the defendant’s appeal waiver did not preclude his challenge to the mandatory minimum. Id. Here, Thomas signed a plea agreement and a “Petition to Enter a Plea of Guilty” on the same day as his plea hearing. Thomas’ plea agreement stated that Count 1 “carries a term of imprisonment of not less than 5 years” and that “For purposes of determining the U.S.S.G. recommended sentencing range, the United States and Defendant agree ... [that 21 U.S.C. § ]841(b)(l)(B)(viii) requires a statutory minimum term of imprisonment of five years[, and,] Accordingly, absent relief from the statutory minimum sentence, Defendant’s sentence would be five years, pursuant to U.S.S.G. § 5Gl.l(b).” (Emphases added.) Although the plea agreement noted that Thomas and the government disagreed on the applicability of the safety valve under § 5C1.2, the “Waiver of Appellate Rights”" }, { "docid": "22890851", "title": "", "text": "such evidence on plain-error review. While such evidence may not always satisfy a Daubert challenge due to deficiencies in testing procedures, for example, there is no inherent fallacy in such evidence to make it inadmissible on plain-error review. G. Denial of Motion for Dovmward, Departure In his final point on appeal, Collins argues that the district court erred in denying his motion for downward departure under United States Sentencing Guidelines § 5K2.0 and § 4A1.3. Collins asserts that the district court mistakenly believed that it did not have the power to depart due to the application of the career offender statute and 21 U.S.C. § 841 (1999), and that the district court indicated that Collins’s criminal history was “overstated.” Collins addresses various prior offenses used to calculate his criminal history and argues that these should have only placed him in Criminal History Category V instead of Category VI. Because the government did not file a motion for a downward departure from the statutory mandatory minimum sentence, the district court properly determined that it had no authority to depart. See 18 U.S.C. § 3553(e) (2000); United States v. Johnson, 988 F.2d 859, 860 (8th Cir.1993); United States v. Hawley, 984 F.2d 252, 254 (8th Cir.1993). The law is firmly established that a district court lacks authority to sentence below the statutory minimum if the pertinent provisions in 21 U.S.C. § 841(b) apply and the government has lawfully declined to move for a downward departure under 18 U.S.C. § 3553(e). See United States v. Rodriguez-Morales, 958 F.2d 1441, 1442-47 (8th Cir.1992). In this case, whether the mandatory life sentence under § 841 (b)(1) (A) (viii) applies depends on whether 500 or more grams of methamphetamine were involved in Collins’s offense. See 21 U.S.C. § 841(b). The jury convicted Collins of conspiring to distribute and possess with intent to distribute 500 or more grams of methamphetamine, a fact the sentencing court was permitted to adopt because the same court presided over the trial in the case. See Wiggins, 104 F.3d at 178 (sentencing court that sat as trial court is not required to" }, { "docid": "14870473", "title": "", "text": "the district court held that the statutory minimum applied, leaving a sentencing range of sixty to seventy-one months. The court then imposed a sixty-month sentence, stating its understanding that this was the lowest sentence it could impose in accord with Reyes. Defendant appealed, challenging only the application of the statutory minimum sentence. II. All other circuits to decide the issue have held that the drug quantities triggering the mandatory sentences prescribed in § 841(b) are determined exclusively by reference to the offense of conviction. Guideline constructs such as relevant conduct, which permit broad-ranging consideration of collateral matters, are limited to their designed role in Guideline-range calculations and do not affect the independent determination of the statutory sentencing directives. See, e.g., United States v. Rettelle, 165 F.3d 489, 491 (6th Cir.1999) (following United States v. Winston, 37 F.3d 235, 241 (6th Cir.1994)); United States v. Barnes, 158 F.3d 662, 669 (2d Cir.1998) (following United States v. Darmand, 3 F.3d 1578, 1581 (2d Cir.1993)); United States v. Rodriguez, 67 F.3d 1312, 1324 (7th Cir.1995); United States v. Estrada, 42 F.3d 228, 232 n. 4 (4th Cir.1994). Before we discuss the particular circumstances and contrary holding of Reyes, it is helpful to set out the rationale for the approach reflected in these cases. The majority approach rests on the plain language of the statute. Those subsections of § 841(b) which establish mandatory sentences for various drug amounts do so by reference solely to the offense of conviction; “In the case of a violation of subsection (a) of this section involving [a specified drug quantity] ... such person shall be sentenced [as prescribed].” § 841(b)(1)(A), (B) (emphasis added). Nothing here suggests consideration of drug quantities collateral to the underlying § 841(a) violation. See Darmand, 3 F.3d at 1581 (“reasoning] from the language of § 841(b)(1)” to conclude mandatory minimum sentence depends on “quantity involved in the charged, and proven, violation of § 841(a)”); see also Winston, 37 F.3d at 240-41 (“It is obvious from the statute’s face-from its use of the phrase ‘a violation’-that [§ 841(b) ] refers to a single violation [of §" }, { "docid": "22873368", "title": "", "text": "intentionally distribute or possess with intent to distribute a controlled substance). Because the object of the Count 1 crack conspiracy was a violation of § 841(a), the Defendants are, pursuant to § 846, subject to the penalties prescribed in § 841(b). As outlined above, § 841(b) creates a three-part graduated penalty scheme for drug distribution offenses, premised on the type and quantity of the drugs involved. See supra note 9. Accordingly, the drug quantity attributed to a particular defendant dictates the § 841(b) penalty subsection that is applicable to such defendant, and controls the statutory sentencing range to which that defendant is exposed. In 2001, our en banc Court determined in United States v. Promise that “specific threshold drug quantities must be treated as elements of aggravated drug trafficking offenses, rather than as mere sentencing factors.” 255 F.3d 150, 156 (4th Cir.2001) (en banc), cert. denied, 535 U.S. 1098, 122 S.Ct. 2296, 152 L.Ed.2d 1053 (2002). B. In the present case, the jury attributed 50 grams or more of crack to the Count 1 crack conspiracy as a whole, after being instructed that “the amount of controlled substances you will need to determine ... is not the amount a single defendant may have been involved with, but rather the amount of controlled substances involved in the conspiracy as a whole.” Supp. J.A. 47. Thus, absent an individualized determination of drug quantity, the verdict (attributing 50 grams or more of crack to the “conspiracy as a whole”) exposed Mathis to a statutory maximum sentence of life, and a mandatory minimum sentence of 10 years. 21 U.S.C. § 841(b)(1)(A). Four years thereafter, in 2005 in Collins, “we addressed the issue of whether a defendant found guilty of a conspiracy to violate § 841(a) should be sentenced under § 841(b) by considering the amount of drugs distributed by the entire conspiracy,” or whether, on the other hand, the statutory sentencing range specified by § 841(b) depends upon the quantity of drugs attributable to the individual defendant. See United States v. Foster, 507 F.3d 233, 250 (4th Cir.2007) (summarizing Collins ). The Collins decision" }, { "docid": "602233", "title": "", "text": "signed a waiver thereof. Kemper then wrote down the statement given by Collins, in which he admitted that the gun was his, and that he had bought it for protection. Collins then signed the statement, which Kemper also signed as a witness. (R. 48, Opinion at 1-3) (record citations and footnote omitted). Collins was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He moved to suppress the gun, the statement he made to Officer Gary at the scene of the traffic stop that he would “take the charge,” and the written statement he signed after his interview with Investigator Kemper at the jail. After conducting an evidentiary hearing, the district court denied the motion to suppress. Collins pleaded guilty to the § 922(g) charge but reserved his right to appeal the district court’s denial of the motion to suppress. Prior to sentencing, the government filed a notice stating that it would not move for the additional one-level decrease in offense level applicable to defendants who demonstrate “acceptance of responsibility” as provided for in § 3El.l(b) of the United States Sentencing Guidelines Manual. At the sentencing hearing, the district court found that the government’s failure to make the § 3El.l(b) motion was not arbitrary or unconstitutionally motivated. Thus, in calculating the applicable advisory Guidelines range, the district court applied only the two-level decrease for acceptance of responsibility provided for in § 3El.l(a). The district court also found that Collins qualified as an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), and U.S.S.G. § 4B1.4(a), meaning that Collins was subject to a minimum sentence of fifteen years. The court determined that Collins’ advisory Guidelines range was 151 to 188 months and sentenced him to 184 months’ imprisonment. Collins appeals the denial of his motion to suppress and his sentence. II. Discussion A. The motion to suppress In its opinion on the motion to suppress, the district court noted that, while Collins had contested the reasonableness of the detention in his motion to suppress, his counsel conceded that" }, { "docid": "22255156", "title": "", "text": "imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person.” 18 U.S.C. § 924(e)(l)(D)(ii). In this case, Frankie Segarra pleaded guilty to possession with intent to distribute 50 grams or more of crack, in violation of 21 U.S.C. § 841, and possession of a firearm in furtherance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c). The plea agreement contained a waiver of appeal provision which barred a direct or collateral appeal unless, relevant to this appeal, (1) the sentence imposed exceeded the guidelines range as determined by the court, or (2) the sentence exceeded the statutory maximum. Segarra was sentenced to 120 months’ imprisonment for the § 841 offense and a mandatory 60-month term for the § 924(c) offense, to be served consecutively. He challenges the imposition of consecutive sentences. At issue in this case is the interpretation of § 924(c)(l)(A)’s prefatory “except” clause and the imposition of consecutive terms of imprisonment. Segarra asserts that, given this “except” clause, the plain language of § 924(c)(1)(A) prohibits consecutive sentences where the underlying offense carried a mandatory minimum that exceeded the minimum applicable to the firearm offense. He contends that the imposition of consecutive sentences therefore exceeded the statutory maximum sentence and the applicable guidelines range. The government argues that the appeal is barred by the terms of the waiver provision in the plea agreement. Upon review of the record and the parties’ briefs, we conclude that the plain language of the statute mandates consecutive sentences and Segarra’s claim is barred by the appeal waiver. Therefore, we dismiss the appeal. We review questions of statutory interpretation de novo. United States v. Krawczak, 331 F.3d 1302, 1305 (11th Cir.2003). “The first rule in statutory construction is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute. If the statute’s meaning is plain and unambiguous, there is no need for further inquiry.” United States v. Fisher, 289 F.3d 1329, 1337-38 (11th Cir.2002) (internal quotation and citation omitted). We will not “look at" }, { "docid": "22873401", "title": "", "text": "was harmless). During argument, the Government also asserted that any Collins error as to V. Sparks and W. Sparks was harmless due to their separate convictions on the Count 10 substantive offense. . We observe that the Government incorrectly asserts that Collins was decided prior to Booker. The Supreme Court decided Booker in January 2005 and we decided Collins in July 2005. Collins analyzed a pre-Booker sentence, while here, on the other hand, we are faced with the question of whether Collins is applicable to post-Booker sentences. . Importantly, Collins commits to the jury the issue of threshold drug quantity for statutory purposes only. It does not require a jury to determine any drug quantities that may be attributable to a § 846 defendant for Sentencing Guidelines purposes. Thus, Collins does not impact the way defendant’s Sentencing Guidelines range is either calculated or considered. Although a sentencing court is free to calculate the advisory Guidelines range using facts that it finds by a preponderance of the evidence, including individualized drug quantities, it must do so within the confines of the applicable statutory range. For example, if a properly instructed jury determines the quantity of crack attributable to a § 846 defendant to be 5 grams or more, the sentencing court would be free to find, by a preponderance of the evidence, additional drug quantities for use in determining that defendant’s advisory Guidelines range. And, it would be permissible for such drug quantities to exceed the 5 grams already found by the juiy. The only limitation on the court's drug quantity finding would be that the resulting sentence is circumscribed by the statutory maximum of 40 years (and minimum of 5 years), which was fixed by the jury's threshold drug quantity finding. See § 841(b)(1)(B); Collins, 415 F.3d at 314. . Although the Collins error explained above applied to all five Defendants, the error is harmless as to Brooks, V. Sparks, W. Sparks, and Witherspoon, for the reasons spelled out supra note 556. . Although Mathis's sentence is infirm, his conspiracy conviction is sound. The jury found Mathis guilty of the" }, { "docid": "22255158", "title": "", "text": "one word or term in isolation, but instead [will] look to the entire statutory context.” United States v. Silva, 443 F.3d 795, 798 (11th Cir.2006) (citing United States v. DBB, Inc., 180 F.3d 1277, 1281 (11th Cir.1999)). We interpret a statute in a manner consistent with the plain language of the statute, unless doing so would lead to an absurd result. Id. Segarra contends that the imposition of consecutive sentences was improper and resulted in a sentence that exceeded the statutory maximum. He claims, therefore, that his challenge to his sentence is not barred by the appeal waiver. In this case, however, Segarra faced a statutory maximum sentence of life imprisonment. See 21 U.S.C. § 841(b)(1)(A). Thus, Segarra’s 180-month sentence is well within the statutory maximum, and this argument is barred by the appeal waiver. The plea agreement, however, also permits Segarra to appeal if the sentence imposed exceeds the guidelines range as determined by the court. Segarra con tends that he may therefore appeal because the consecutive sentences resulted in an overall term of imprisonment that exceeded the guidelines range. To determine whether the sentences exceeded the guidelines range, we must first consider whether the district court properly imposed consecutive sentences for the drug and firearm offenses. As discussed above, Segarra was convicted of drug possession under § 841 and possession of a firearm under § 924(c). Violations of § 841 carry a mandatory minimum sentence of ten years’ imprisonment. 21 U.S.C. § 841(b)(l)(A)(iii). Section 924(c) requires a 60-month term of imprisonment to be served consecutively. 18 U.S.C. § 924(c)(1)(A), (c)(l)(D)(ii). Segarra contends that § 924’s “except” language means that if his mandatory minimum sentence for the drug offenses is greater than the mandatory minimum for the firearm offense, the two sentences cannot run consecutively. This court has not yet addressed this precise issue. And, although there is a circuit split, only one circuit has followed Segarra’s interpretation. In United States v. Williams, the Second Circuit held that it was improper to sentence a defendant for both the § 841 mandatory minimum and the § 924(c) mandatory minimum under" } ]

[ { "docid": "22771045", "title": "", "text": "the hypothetical question at issue here, the ALJ stated: “I’d like for you to assume a person of the same age, education and work background as Mr. Burns, and further assume that the individual is capable of light exertional work, provided it involves no more than occasional postural activity, and no more than simple repetitive one, two-step tasks. Would such an individual be able to perform ... other work?” In response, the vocational expert concluded that Burns could work as a laundry sorter, ticket taker, or packer. The ALJ adopted this conclusion for his finding that Burns could make a successful vocational adjustment to work that exists in significant numbers in the national economy, as required for step five in the evaluation process. Burns argues that this hypothetical question did not take into account his deficiency in intellectual functioning as disclosed in Dr. Laviolette’s report. Quite clearly, the ALJ did not pose any questions to the vocational expert based on Dr. Laviolette’s report — the report did not exist at the time of the hearing. Nevertheless, the Commissioner contends that the ALJ’s use of the factor of “simple repetitive one, two-step tasks” was sufficiently descriptive to encompass the post-hearing findings of Dr. Laviolette. Our case law, however, directs that greater specificity is required. Discussing hypothetical questions posed to vocational experts, we have said that “[w]hile the ALJ may proffer a variety of assumptions to the expert, the vocational expert’s testimony concerning a claimant’s ability to perform alternative employment may only be considered for purposes of determining disability if the question accurately portrays the claimant’s individual physical and mental impairments.” Podedworby, 745 F.2d at 218. A hypothetical question posed to a vocational expert “must reflect all of a claimant’s impairments.” Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir.1987) (emphasis added). Where there exists in the record medically undisputed evidence of specific impairments not included in a hypothetical question to a vocational expert, the expert’s response is not considered substantial evidence. Podedworny, 745 F.2d at 218 (citing Wallace v. Secretary of Health & Human Servs., 722 F.2d 1150, 1155 (3d Cir.1983))." } ]

[ { "docid": "8001782", "title": "", "text": "(10th Cir.2009) (observing that “the purpose of the credibility evaluation is to help the ALJ assess a claimant’s RFC,” and that the “the ALJ’s credibility and RFC determinations are [therefore] inherently intertwined”). Taking into consideration the vocational expert’s (VE’s) testimony, the ALJ next found Ms. Newbold could not perform any of her past relevant work. See 20 C.F.R. § 404.1594(f)(7). But given her RFC, and considering her age, education, and past work experience — and relying on the VE’s testimony — the ALJ concluded that beginning on November 2, 2007, Ms. Newbold “has been capable of making a successful adjustment to [other] work that exists in significant numbers in the national economy.” Admin. R. at 31. See 20 C.F.R. § 404.1594(f)(8). He therefore concluded that Ms. Newbold’s disability ended on November 2, 2007. The Appeals Council denied Ms. New-bold’s request for review and a magistrate judge, presiding pursuant to 28 U.S.C. § 636(c)(1), affirmed the Commissioner’s decision. Ms. Newbold appeals, arguing the ALJ erroneously: (1) concluded that she had experienced a medical improvement as of November 2, 2007; (2) rejected her treating rheumatologist’s (Dr. McMillan’s) opinion that she was disabled after November 1, 2007; (3) evaluated her subjective complaints regarding the intensity, persistence, and limiting effects of her symptoms after November 1, 2007; and (4) failed to include, in his hypothetical to the VE, limitations assessed by Dr. McMillan after November 1, 2007. II. DISCUSSION “In reviewing the ALJ’s decision, we neither reweigh the evidence nor substitute our judgment for that of the agency.” Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir.2004) (internal quotation marks omitted). Rather, we examine the record as a whole to ascertain whether the ALJ’s decision to grant benefits for a closed period, and to deny benefits thereafter, is supported by substantial evidence and adheres to the correct legal standards. See Shepherd, 184 F.3d at 1199. “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.2007) (internal quotation marks omitted). It is “more than a scintilla, but less" }, { "docid": "11338151", "title": "", "text": "impairment prevented her from performing her past relevant work as an advertising media director. See id. at 33. The evidence in the Administrative Record used by the ALJ to reach her finding included Rohrberg’s testimony from the hearing, her treating physician’s notes and letters written in the context of Rohrberg’s application for benefits, and the opinions of a Vocational Expert (“VE”) based on the ALJ’s hypothetical residual functioning capacity (“RFC”). See id. at 22-38. The ALJ then found that Rohrberg possessed work skills which could be applied to other work existing in significant numbers in the national economy and that she was, therefore, not disabled. See id. at 33-34. The ALJ’s decision became final when the Appeals Council denied the plaintiffs request for review on October 10, 1997. See A.R. at 6-7. . III. STANDARD OF REVIEW The Court may not disturb the Commissioner’s decision if it is grounded in sub stantial evidence. See 42 U.S.C. § 405(g). The Supreme Court of the United States has defined substantial evidence as “more than a mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Even if the record could support multiple conclusions, the Court must uphold the Commissioner “if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [his] conclusion.” Irlanda Ortiz v. Secretary of Health and Human Servs., 955 F.2d 765, 769 (1st Cir.1991) (quoting Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir.1981)); see also Richardson, 402 U.S. at 401, 91 S.Ct. 1420. Even if the record arguably could justify a different result, the Court must affirm the Commissioner’s resolution so long as substantial evidence supports it. Rodriguez Pagan v. Secretary of Health & Human Servs., 819 F.2d 1, 3 (1st Cir.1987), cert. denied, 484 U.S. 1012, 108 S.Ct. 713, 98 L.Ed.2d 663 (1988). In determining the substantiality of the evidence, the Court will “examine the record as a whole, including whatever in the record fairly detracts from the weight of the Secretary’s decision.” Glenn v. Shalala, 21" }, { "docid": "22288976", "title": "", "text": "equal the criteria found in the social security administration’s Listing of Impairments. See 20 C.F.R. § 404, Subpart P, App. 1. The ALJ found that Young was unable to perform her past relevant work as a general duty nurse but possessed the residual functional capacity (RFC) to perform a limited range of sedentary work. Based on a vocational expert’s response to a hypothetical question, the ALJ concluded that Young could perform a significant number of jobs in the national economy and accordingly denied Young’s request for benefits. The Appeals Council denied Young’s request for further review, making the ALJ’s decision the final decision of the Commissioner. Young then sought review in the district court pursuant to 42 U.S.C. § 405(g). The district court granted the Commissioner’s motion for summary judgment, finding that substantial evidence supported the Commissioner’s decision to deny Young disability benefits. For reversal, Young challenges the ALJ’s credibility findings, RFC assessment, formulation of the hypothetical, and conclusions regarding the availability of jobs in the national economy that Young could perform. II. Our role on review is to determine whether the Commissioner’s findings are supported by substantial evidence on the record as a whole. See Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir.2000). Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support the Commissioner’s conclusion. See Craig v. Apfel, 212 F.3d 433, 435 (8th Cir.2000). In determining whether existing evidence is substantial, we consider evidence that detracts from the Commissioner’s decision as well as evidence that supports it. See Prosch, 201 F.3d at 1012. We may not reverse the Commissioner’s decision merely because substantial evidence exists in the record that would have supported a contrary outcome. See id. Rather, if, after reviewing the record, we find that “ ‘it is possible to draw two inconsistent positions from the evidence and one of those positions represents the [Commissioner’s] findings, we must affirm the decision’ ” of the Commissioner. Roth v. Shalala, 45 F.3d 279, 282 (8th Cir.1995) (quoting Robinson v.. Sullivan, 956 F.2d 836, 838 (8th Cir.1992)). Young first argues that the ALJ" }, { "docid": "22117152", "title": "", "text": "(RFC) to perform limited light and sedentary work. Specifically, the ALJ found that plaintiffs ability to do light and sedentary work was restricted by the following nonexertional limitations: limited fine finger manipulation in the left hand, limited feeling in both hands, inability to manipulate small objects, and mental impairments that necessitated simple, repetitive, unskilled work. The ALJ concluded that plaintiff could no longer do his past relevant work, which had required heavy exertion, but that he could perform a variety of light and sedentary jobs that exist in significant numbers in the national economy. The Appeals Council denied plaintiffs petition for review, thereby making the ALJ’s decision the final decision of the Commissioner, and the district court subsequently affirmed the denial of benefits. Plaintiff now appeals to this court, arguing that (1) the ALJ’s RFC assessment is not supported by substantial evidence; (2) the ALJ’s credibility findings are neither linked to, nor supported by, specific evidence in the record; and (3) the ALJ failed to include all of plaintiffs impairments in his hypothetical questions to the vocational expert (VE). We review the Commissioner’s decision to determine whether it is supported by substantial evidence and whether correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir.1997). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Soliz v. Chater, 82 F.3d 373, 375 (10th Cir.1996) (quotations omitted). In conducting our review, we may neither reweigh the evidence nor substitute our judgment for that of the Commissioner. See Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.1991). The ALJ’s RFC Assessment Plaintiff first challenges the ALJ’s RFC assessment on the ground that “[t]he Administrative Law Judge’s finding that the Appellant can perform a full range of light or sedentary work on a sustained, consistent basis is simply not based on substantial evidence.” Appellant’s Br. at 27. This argument is based on a misrepresentation of the record and is clearly without merit. The ALJ did not find that plaintiff could perform a full range of" }, { "docid": "22288975", "title": "", "text": "WOLLMAN, Chief Judge. Sheila J. Young appeals from the district court’s order affirming the denial of her request for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. We affirm. I. Young was born on September 17, 1958. Her past relevant work is that of a general duty nurse. Young filed for disability insurance benefits in October of 1994, alleging'that she could not work because of multiple sclerosis. After her request was denied initially and upon review, Young appealed to an administrative law judge (ALJ), who evaluated her claim according to the five-step sequential analysis prescribed by the social security regulations. See 20 C.F.R. §§ 404.1520(a)-(f); Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (describing the fiverstep analysis). The ALJ determined that Young met the disability insured-status requirements between October 15, 1983, and December 31, 1988, a period during which she had not engaged in substantial gainful activity. The ALJ also found, however, that Young’s multiple sclerosis did not meet or equal the criteria found in the social security administration’s Listing of Impairments. See 20 C.F.R. § 404, Subpart P, App. 1. The ALJ found that Young was unable to perform her past relevant work as a general duty nurse but possessed the residual functional capacity (RFC) to perform a limited range of sedentary work. Based on a vocational expert’s response to a hypothetical question, the ALJ concluded that Young could perform a significant number of jobs in the national economy and accordingly denied Young’s request for benefits. The Appeals Council denied Young’s request for further review, making the ALJ’s decision the final decision of the Commissioner. Young then sought review in the district court pursuant to 42 U.S.C. § 405(g). The district court granted the Commissioner’s motion for summary judgment, finding that substantial evidence supported the Commissioner’s decision to deny Young disability benefits. For reversal, Young challenges the ALJ’s credibility findings, RFC assessment, formulation of the hypothetical, and conclusions regarding the availability of jobs in the national economy that Young could perform. II. Our role" }, { "docid": "3301589", "title": "", "text": "197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). The. Commissioner’s findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.1986) (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.1984)). If the Commissioner seeks to rely on testimony of the Vocational Expert to carry her burden of proving the existence of a substantial number of jobs that Plaintiff can perform, other than his past work, the testimony must be given in response to a hypothetical question that accurately describes Plaintiff in all significant, relevant respects. A response to a flawed hypothetical question is not substantial evidence and cannot support a finding that work exists which the Plaintiff can perform. Also, an ALJ must give specific reasons when finding a Plaintiffs testimony not credible. SSR 96-7p. 42 U.S.C. § 405(g) allows for the District Court to enter a judgment reversing the findings of the Commissioner, and remanding for a hearing. “[Wjhen there is not substantial evidence to support one of the ALJ’s factual findings and his decision therefore must be reversed, the appropriate remedy is not to award benefits. The ease can be remanded under sentence four of 42 U.S.C. § 405(g) for further consideration.” Faucher v. Secretary of Health and Human Services, 17 F.3d 171, 175-76 (6th Cir.1994). B. Factual Analysis Plaintiff argues (1) that the ALJ misstated evidence which deprived Plaintiff of her due process rights to a fair hearing, (2) that the hypothetical and RFC does not properly reflect Plaintiffs mental disabilities, and (3) the ALJ failed to perform a “function-by-function analysis” of Plaintiffs mental impairments. Plaintiff argues that the ALJ misstated and misinterpreted evidence relevant to her decision, which deprived her of her “Due Process” rights to a fair hearing. In support of this position, Plaintiff outlines four paragraphs from the ALJ’s decision, and contrasts them with evidence taken from the record to suggest an unfair “spin” was given to the evidence. See Plaintiffs Brief in Support of Motion at 5-7. Plaintiffs argument could be read in two" }, { "docid": "22612433", "title": "", "text": "capacity to perform modified light work, and could perform jobs which existed in significant numbers in the local and national economy. The ALJ also made a specific finding that Plummer did not suffer from a “severe” mental impairment which affects her ability to perform work-related activities, even though (as noted above) she did not allow the claimant to present any evidence as to her mental state. The Appeals Council of the Social Security Administration declined further review on May 7, 1996, making the ALJ’s determination an appealable final decision. On December 4, 1996, Plummer filed an action pursuant to 42 U.S.C. § 405(g) in the United States District Court for the Eastern District of Pennsylvania seeking judicial review of her denial of disability benefits under Title II of the Social Security Act. The District Court referred the case to a Magistrate Judge to determine if the Commissioner’s decision was supported by substantial evidence. Upon consideration of the parties’ cross-motions for summary judgment, the Magistrate Judge recommended the Commissioner’s motion for summary judgment be granted. The District Court adopted the Magistrate Judge’s report, and granted summary judgment for the Commissioner on July 22, 1998. Plummer now appeals the District Court’s decision. II. Discussion On appeal, Plummer contends the ALJ erred in discounting the treating rheuma-tologist’s diagnosis of her condition, and in relying on an incomplete hypothetical in her examination of the vocational .expert. Plummer also argues the ALJ treated the evidence of her mental impairments improperly. Congress provides for judicial review of the Commissioner’s decisions to deny a claimant’s application for disability benefits. 42 U.S.C. § 405(g). The role of this Court is identical to that of the District Court, namely to determine whether there is substantial evidence to support the Commissioner’s decision. Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir.1994). The Court is bound by the ALJ’s findings of fact if they are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir.1986). Substantial evidence has been defined as “more than a mere scintilla. It means such relevant evidence" }, { "docid": "19104954", "title": "", "text": "of Medical-Vocational Guidelines directed a finding that Riggins was not disabled. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (describing the five-step analysis). In addition, the ALJ discredited Riggins’s subjective complaints of disabling pain after applying the factors set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984) (subsequent history omitted). On January 17, 1997, the Appeals Council denied Riggins’s request for further review, and the ALJ’s decision thereby became the final decision of the Commissioner. Subsequently, Riggins appealed to the district court pursuant to 42 U.S.C. § 405(g) (1994). On April 27, 1998, the district court granted the Commissioner’s motion for summary judgment, finding that substantial evidence supported the Commissioner’s decision to deny Riggins disability insurance benefits and supplemental security income. On appeal, Rig-gins argues that (1) the Commissioner’s decision that he is not disabled is not supported by substantial evidence because the ALJ improperly discredited his subjective complaints of disabling pain and (2) the ALJ’s conclusion, that a significant number of jobs in the national economy exist that Riggins can perform, is not supported by substantial evidence because the ALJ posed a defective hypothetical question to the vocational expert. Riggins claims that this hypothetical question was defective because it did not clearly state that Riggins cannot sit for more than one hour without interruption and further failed to include Riggins’s pain complaints. II. DISCUSSION We review the Commissioner’s findings to determine whether they are supported by substantial evidence in the record as a whole. See Clark v. Apfel, 141 F.3d 1253, 1255 (8th Cir.1998). Substantial evidence is defined as relevant evidence which a reasonable mind would accept as adequate to support the Commissioner’s conclusion. See id. In our review, we must consider evidence that detracts from the Commissioner’s decision as well as evidence that supports it. See id. We may not reverse the Commissioner’s decision merely because substantial evidence exists in the record to support a contrary outcome. See id. We first address Riggins’s argument that the ALJ improperly discredited his subjective complaints of pain. “As is true in" }, { "docid": "22769661", "title": "", "text": "simply examples, rather than an exhaustive list, of the work the claimant could perform given her limitations (id. and id. n. 6). This case bears a closer resemblance to Jones than to Boone. First, the vocational expert here explicitly stated that other occupations would be available and that he was simply providing examples, so his testimony was not intended to provide a complete list of occupations available to an individual with Rutherford’s limitations. Second, inconsistencies are not present as to each of the jobs that the expert did list. Many of Rutherford’s claims are based on an assertion that the jobs listed by the vocational expert require greater dexterity than Rutherford possesses, as indicated by her Purdue Pegboard Test results. But those claims are really just a different form of the already-rejected argument challenging the ALJ’s decision to restrict Rutherford’s dexterity limitation. And without that argument those claimed inconsistencies disappear, because the jobs identified are consistent with the limitations that the ALJ posed to the expert in his hypothetical questions. As for the other instances of claimed inconsistency, which relate to two jobs identified by the expert with specified vocational preparation classifications that render them beyond the ALJ’s limitation to unskilled work, they are simply not egregious enough — either in number or in substance — to bring into question the ALJ’s reliance on the expert testimony as a whole. Therefore, although some minor inconsistencies may exist between the vocational testimony and DOT information, we conclude that the testimony provided substantial evidence for the ALJ’s conclusions. Conclusion In sum, we find that the decision of the Commissioner was supported by substantial evidence. We AFFIRM the decision of the District Court. . Further citations to the Act will take the form \"Section — ,” eliminating any need to repeat \"42 U.S.C.” Relatedly, citations to the regulations in 20 C.F.R. pt. 416 will simply take the form \"Reg. § —,” citing the portion of the section number following \"416.” and thus omitting the repetition of “20 C.F.R.” as well as \"416.” . Rutherford had earlier told a vocational evaluator that she was" }, { "docid": "22738717", "title": "", "text": "step four that Lingenfel-ter was not capable of performing any of his past relevant work as a construction worker, warehouse worker, or automobile detailer. The ALJ therefore proceeded to step five, where he determined that Lin-genfelter was not disabled because he re tained the capacity to perform other work that existed in sufficient numbers in the national economy. In making this determination, the ALJ posed to a vocational expert both a hypothetical question based on the RFC that he assigned to Lingenfel-ter and hypothetical questions that included the additional limitations testified to by Lingenfelter. In response, the vocational expert testified that a person with the RFC assigned by the ALJ could perform almost a full range of sedentary work, but that sufficient jobs did not exist even at the sedentary level for a person with the additional limitations testified to by Lin-genfelter. The expert testified that if an employee needed to lie down two or three times a day for up to 45 minutes, as Lin-genfelter testified was necessary, that “essentially would eliminate any of the positions described, and in fact any of the positions at the sedentary level.” II. Analysis We review de novo a district court’s judgment upholding the denial of social security benefits. Reddick, 157 F.3d at 720. “We may set aside a denial of benefits only if it is not supported by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.2006). “Substantial evidence” means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Id. If the evidence can reasonably support either affirming or reversing a decision, we may not substitute our judgment for that of the Commissioner. Id. However, 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,” Reddick, 157 F.3d at 720, and “may not affirm simply by isolating a specific quantum of supporting evidence.” Hammock v. Bowen, 879 F.2d 498, 501" }, { "docid": "15322827", "title": "", "text": "that the ALJ’s decision was supported by substantial evidence. II. We review the district court’s affirmance de novo and therefore review the ALJ’s decision directly. E.g., Thomas v. Colvin, 745 F.3d 802, 805 (7th Cir.2014). We review the ALJ’s decision deferentially only to determine if it is supported by “substantial evidence,” which we have described as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir.2014) (internal quotations and citation omitted). We neither reweigh the evidence nor substitute our own judgment in place of the ALJ, but her decision must provide enough discussion for us to afford Yurt meaningful judicial review and assess the validity of the agency’s ultimate conclusion. Id. On appeal, Yurt argues that several flaws in the ALJ’s decision undercut her conclusions at Steps Four and Five that he could perform his past work or other jobs in the national economy. He first claims that the ALJ’s hypothetical to the VE is flawed because it failed to fully account for his limitations. Relatedly, he attacks the ALJ’s failure to consider his tension headaches at all. He also claims the ALJ did not properly weigh the medical evidence from his treating physicians. Finally, he asserts that the ALJ failed to build a logical bridge between the medical evidence and her conclusion that Yurt had not experienced any episodes of extended decompensation. We begin with the ALJ’s hypothetical question to the VE, which, as detailed above, simply described an individual who could perform unskilled tasks, relate superficially to small numbers of people, and attend to tasks long enough to complete them. Yurt notes that the hypothetical fails to mention his headaches, his COPD, his tendency to “black out,” the voices he hears, and significantly, the limitations outlined in state agency psychologist Dr. Lovko’s assessment that the ALJ expressly “adopted.” Instead of directly defending the hypothetical, the Commissioner focuses on the ALJ’s related finding regarding Yurt’s residual functional capacity, which essentially mirrored her hypothetical to the VE. Their dispute centers on whether the ALJ was required" }, { "docid": "23551930", "title": "", "text": "part of this assessment, the ALJ marked that Smith “Often” suffered “Deficiencies of Concentration, Persistence or Pace Resulting in Failure to Complete Tasks in a Timely Manner,” a rating in the middle of a five-part scale that ran from “Never” to “Constant.” The district court affirmed the Commissioner’s final decision. II. DISCUSSION Our review of the Commissioner’s decision is limited to determining whether the Commissioner’s findings of fact are supported by substantial evidence. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984); see also 42 U.S.C. § 405(g) (stating that the Commissioner’s findings as to any fact are conclusive if supported by substantial evidence). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). A vocational expert’s testimony concerning the availability of suitable work may constitute substantial evidence where the testimony is elicited in response to a hypothetical question that accurately sets forth the plaintiffs physical and mental impairments. See Varley v. Sec’y of HHS, 820 F.2d 777, 779 (6th Cir.1987). Here, the ALJ described Smith’s work experience and physical restrictions to the vocational expert, and characterized his mental impairment as limiting him to jobs that are routine and low stress, and do not involve intense interpersonal confrontations, high quotas, unprotected heights, or operation of dangerous machinery. The ALJ then asked the expert whether Smith could perform jobs existing in significant numbers in the national economy despite his impairments. The expert identified four such jobs: order clerk, assignment clerk, dispatcher, and telephone answering service operator. Smith argues that the vocational expert’s assessment cannot provide substantial evidence for the ALJ’s decision because the ALJ did not accurately characterize Smith’s mental impairment in his hypothetical to the expert. Specifically, Smith argues that the ALJ should have added the instruction that the claimant “often” suffers deficiencies in concentration, persistence, or pace resulting in failure to complete tasks in a timely manner, as the ALJ indicated in the PRT. Under cross examination by Smith’s attorney, the vocational expert admitted that" }, { "docid": "23171565", "title": "", "text": "requirements of listing 12.04. The ALJ proceeded to apply a “residual functional limitation assessment,” called for when a severe impairment is present but not in a degree that meets or equals a listed impairment. The ALJ concluded that Boyd could not perform his past work as a welder and construction worker. However, the ALJ found that Boyd had a residual functional capacity for a full range of light work, not reduced by his nonexer-tional limitations. In denying disability benefits, the ALJ concluded that Boyd was able to work in employment positions existing in significant numbers in the national economy. The ALJ based this ruling on the testimony of the vocational expert, given in response to hypothetical questions intended to account for Boyd’s abilities and impairments. The Appeals Council denied review on July 17, 1998. Boyd timely appealed the denial of benefits to the District Court for the Northern District of Texas under 42 U.S.C. § 405(g). The district court referred Boyd’s case to a magistrate judge. The magistrate judge found that substantial evidence supported the findings of the ALJ and that the ALJ did not apply an improper legal standard. The district court adopted the findings and conclusions of the magistrate judge, without comment. Boyd now appeals the district judge’s judgment affirming the Commissioner’s decision to deny benefits, arguing that the ALJ applied an improper legal standard and that there was no substantial evidence to support the ALJ’s decision to deny benefits. II. THE STANDARD OF REVIEW “Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party ... may obtain a review of such decision by a civil action” in a district court. 42 U.S.C. § 405(g). Judicial review of the Commissioner’s decision to deny benefits is limited to determining whether that decision is supported by substantial evidence and whether the proper legal standards are applied. Substantial evidence is such relevant evidence as a responsible mind might accept to support a conclusion. It is more than a mere scintilla and less than a preponderance. A finding of no" }, { "docid": "23569734", "title": "", "text": "reviewing psychologist’s finding and, if so, should account for this information in the new hypothetical. The Commissioner protests that the ALJ was entitled to disregard the finding without comment because it appears only in the “Summary Conclusions” section of Dr. Unversaw’s evaluation and is not repeated in the “Functional Capacity Assessment” section. According to the Commissioner’s view, the former section is simply a worksheet prepared en route to furnishing the latter, and thus lacks evidentiary value. The ALJ’s decision, however, refers to, and appears to give weight to, evidence from both parts of the form. Because the ALJ did consider both parts of the form in making his decision, we need not decide today whether an ALJ may ignore entirely the worksheets of a reviewing psychologist. Ms. O’Connor-Spinner also points to a statement, made by her mother and recounted by Dr. Unversaw, that she can respond to other people’s rudeness by becoming rude herself. Ms. O’Connor-Spinner has not shown what this statement, if credited, adds to her case. Nevertheless, the ALJ is free to address this statement on remand if he considers it appropriate to do so. Conclusion We conclude that the ALJ failed to direct the VE to the totality of Ms. O’Con-nor-Spinner’s limitations, thus leaving unsupported the determination that someone with her limitations could perform work in the national economy. We further conclude that the ALJ did not address potentially important evidence that Ms. O’Connor-Spinner has difficulty taking instructions and responding appropriately to supervisors. Accordingly, the judgment of the district court is reversed, and this case is remanded to the agency for further proceedings consistent with this opinion. Reversed and Remanded . In her application for benefits, Ms. O'Con-nor-Spinner also claimed that she suffers from bipolar disorder, but we, like the ALJ, the district court and the parties on appeal, focus on the record evidence of depression. . Initially, Ms. O'Connor-Spinner also claimed arthritis and a blood disorder. . Simila v. Astrue, 573 F.3d 503, 520 (7th Cir.2009); Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir.2004); Young v. Barnhart, 362 F.3d 995, 1003 (7th Cir.2004); Steele v." }, { "docid": "22381348", "title": "", "text": "WILSON, Circuit Judge: Michael Winschel appeals the district court’s order affirming the Administrative Law Judge’s (“ALJ”) denial of his application for disability insurance benefits and supplemental security income, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), respectively. First, Winschel asserts that the ALJ erred by failing to consider and to specify the weight he accorded to the medical opinions of a treating physician and an examining physician. Second, Winschel contends that the ALJ erred by posing an incomplete hypothetical question to the vocational expert and then by relying on the vocational expert’s response to conclude that there were significant numbers of jobs in the national economy that Winschel could perform. Winschel argues that these errors demonstrate that the ALJ’s denial of benefits was not based on proper legal standards and was not supported by substantial evidence. We agree, and for the following reasons, we reverse and remand. In Social Security appeals, we must determine whether the Commissioner’s decision is “ ‘supported by substantial evidence and based on proper legal standards. Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.’ ” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.2004) (per curiam) (internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir.1997)). “We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].” Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir.2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983)). The Social Security Regulations outline a five-step, sequential evaluation process used to determine whether a claimant is disabled: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a residual functional capacity (“RFC”) assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and" }, { "docid": "18359095", "title": "", "text": "production shifts to the Commissioner to produce evidence of jobs available in the national economy that can be performed by a person with the claimant’s RFC and vocational skills.”). Specifically, Lacroix argues that when the VE testified that such jobs were available, the VE was answering a hypothetical question that did not take into account all of Lacroix’s impairments. “Testimony based on hypothetical questions that do not encompass all relevant impairments cannot constitute substantial evidence to support the ALJ’s decision.” Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir.1994). According to Lacroix, the hypothetical should have included the additional mentally based and hearing-loss limitations discussed above. We disagree. “The ALJ’s hypothetical question to the vocational expert needs to include only those impairments that the ALJ finds are substantially supported by the record as a whole.” Id. Moreover, the hypothetical question need not frame the claimant’s impairments in the specific diagnostic terms used in medical reports, but instead should capture the “concrete consequences” of those impairments. Roe v. Chater, 92 F.3d 672, 676-77 (8th Cir.1996). The ALJ’s hypothetical question included all of Lacroix’s limitations found to exist by the ALJ and set forth in the ALJ’s description of Lacroix’s RFC. As noted above, the ALJ’s findings of Lacroix’s RFC are supported by substantial evidence. The hypothetical question was therefore proper, and the VE’s answer constituted substantial evidence supporting the Commissioner’s denial of benefits. IV. Our review of the record convinces us that the ALJ’s determination is both consistent with the legal standards applicable to Lacroix’s case and supported by substantial evidence. Accordingly, we affirm. . The Honorable Charles R. Wolle, United States District Judge for the Southern District of Iowa. . We further note that Lacroix was represented by counsel in the proceedings before the ALJ. See Onstad, 999 F.2d at 1234 (noting that, when represented by a lawyer, whether the lawyer attempted to obtain the information \"missing” from the record is relevant to the prejudice inquiry). . Lacroix also contends that the ALJ's opinion is internally inconsistent because in finding \"severe” impairments at step two of the five-step analysis, the" }, { "docid": "20591802", "title": "", "text": "simple, routine tasks with supervision that is simple, direct, and concrete. This residual functional capacity mirrors that of the individual in the first hypothetical that the ALJ posed to the vocational expert. The ALJ concluded that although Pearson could not perform any relevant past work, he could perform jobs that exist in significant-numbers in the national economy, including work as a motel cleaner, cashier II, and machine tender/bench press operator; these are the same jobs the vocational expert mentioned. The ALJ thus found Pearson not disabled and not entitled to benefits. Pearson requested an Appeals Council review of this decision, which the Council denied. Pearson then filed this action in federal court. Upon consideration of the parties’ cross-motions for summary judgment, a magistrate judge issued a report recommending grant of summary judgment to the Acting Commissioner of the Social Security Administration (Commissioner). Pearson filed objections, arguing that the magistrate judge erred in recommending affirmance of the ALJ’s finding that he was not disabled or eligible to receive benefits. This was assertedly so because the ALJ did not resolve a conflict between the vocational expert’s testimony and the Dictionary as to whether the jobs identified by the expert required an ability Pearson did not have — to frequently reach overhead with both arms. The district court overruled the objection, adopted the magistrate judge’s recommendation, and granted the Commissioner summary judgment. This timely appeal followed. II. When reviewing a Social Security disability determination, a reviewing court must “uphold the determination when an ALJ has applied correct legal standards and the ALJ’s factual findings are supported by substantial evidence.” Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir.2012). Substantial evidence is that which “a reasonable mind might accept as adequate to support a conclusion.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.2005) (per curiam) (internal quotation marks omitted). It “consists of more than a mere scintilla of evidence but may be less than a preponderance.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.2012) (internal quotation marks omitted). In considering an application for disability benefits, an ALJ uses" }, { "docid": "22231414", "title": "", "text": "regulations. See 20 C.F.R. §§ 404.1520(a) — (f); see also Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (describing the five-step analysis). The ALJ determined that Prosch was not presently engaged in substantial gainful activity and that he had severe impairments, including low back pain with degenerative disc disease and depression, but that his impairments did not meet the criteria found in the Listing of Impairments. See App. 1, Subpart P, Regulations No. 4. The ALJ further found that although Prosch was unable to perform any of his past relevant work, he possessed the residual functional capacity to perform a limited range of sedentary work. Therefore, the ALJ, after receiving the testimony of a vocational expert, concluded that Prosch could perform a significant number of jobs in the national economy and thus was not disabled. The Appeals Council denied Prosch’s request for further review, and the ALJ’s decision thereby became the final decision of the Commissioner. Prosch then sought review in the district court, which affirmed the Commissioner’s decision. On appeal, Prosch contends that: (1) the ALJ failed to grant proper weight to the opinion of his treating physician; and (2) the hypothetical question posed to the vocational expert did not adequately reflect Prosch’s physical impairments. II. “Our role on review is to determine whether the Commissioner’s findings are supported by substantial evidence on the record as a whole.” Clark v. Apfel, 141 F.3d 1253, 1255 (8th Cir.1998). Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion. See Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir.1998). In determining whether existing evidence is substantial, we consider “evidence that detracts from the Commissioner’s decision as well as evidence that supports it.” Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir.1999). “We may not reverse the Commissioner’s decision merely because substantial evidence supports a contrary outcome.” Id. A. We first consider Prosch’s contention that the ALJ failed to grant proper weight to the opinion of his treating physician, Dr. Paul Crowe. At" }, { "docid": "19161530", "title": "", "text": "manipulation with the dominant hand. The ALJ asked a second set of hypothetical questions that described a person who had the capacity to do light, unskilled work, but who could only occasionally perform fine hand manipulation. The VE testified that there were a significant number of jobs in the economy that this person could perform. In evaluating Murphy’s claim, the ALJ ruled that Murphy was not disabled because she had the RFC to perform the full range of light, unskilled work. Murphy sought and obtained a review before the Appeals Council, which adopted the ALJ’s decision. The ALJ’s decision became the final decision of the Commissioner when the Appeals Council denied Murphy’s request for review. She appealed the Council’s decision to federal district court and the parties consented to a magistrate judge conducting the proceeding. Murphy sought review of the agency’s decision challenging the ALJ’s credibility determination, RFC determination, and application of the medical-vocational guidelines. The court affirmed the Commissioner’s decision that Murphy was not disabled and therefore was not entitled to disability insurance benefits. This appeal followed. II. ANALYSIS We review de novo the magistrate court’s decision, and reverse an ALJ’s determination only where it is not supported by substantial evidence, which means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir.2007) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). “We will not, however, reweigh the evidence or substitute our judgment for that of the ALJ’s.” Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir.2013). In reaching its decision, the ALJ “must build a logical bridge from the evidence to his conclusion, but he need not provide a complete written evaluation of every piece of testimony and evidence.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir.2005) (internal citations and quotation marks omitted). A. ALJ’s Credibility Determination Patently Wrong Murphy argues that the ALJ improperly analyzed the credibility of her and her husband when the judge imper-missibly relied on oft-criticized boilerplate language and that the ALJ’s credibility" }, { "docid": "23551929", "title": "", "text": "OPINION SILER, Circuit Judge. Plaintiff Daniel L. Smith appeals the district court’s dismissal of his appeal of a final decision of the Commissioner of Social Security. He challenges the district court’s finding that the Commissioner’s decision to deny benefits was supported by substantial evidence. We AFFIRM. I. BACKGROUND Smith applied to the Social Security Administration (“SSA”) for supplemental security income and disability benefits on October 14, 1993. He claims disability based on neck and shoulder pain, neuropa-thy in his legs, depression, and migraines. The SSA Appeals Council adopted as the Commissioner’s final decision a memorandum opinion in which an administrative law judge (“ALJ”) concluded that Smith was not disabled and therefore not entitled to benefits because he could still perform jobs existing in significant numbers in the national economy despite his impairments. The ALJ based his finding on testimony from treating and examining physicians and a vocational expert. The ALJ attached a multiple-choice Psychiatric Review Technique (“PRT”) questionnaire to the memorandum opinion which assessed the degree of functional limitation caused by Smith’s mental impairment. As part of this assessment, the ALJ marked that Smith “Often” suffered “Deficiencies of Concentration, Persistence or Pace Resulting in Failure to Complete Tasks in a Timely Manner,” a rating in the middle of a five-part scale that ran from “Never” to “Constant.” The district court affirmed the Commissioner’s final decision. II. DISCUSSION Our review of the Commissioner’s decision is limited to determining whether the Commissioner’s findings of fact are supported by substantial evidence. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984); see also 42 U.S.C. § 405(g) (stating that the Commissioner’s findings as to any fact are conclusive if supported by substantial evidence). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). A vocational expert’s testimony concerning the availability of suitable work may constitute substantial evidence where the testimony is elicited in response to a hypothetical question that accurately sets forth the plaintiffs physical and mental impairments. See Varley" } ]

[ { "docid": "5508152", "title": "", "text": "will be moot. If the state courts hear the claim on the merits and decide against Thomas, he may return to the District Court, which will then have before it a federal constitutional question as to which state remedies have undoubtedly been exhausted. If the state courts decline to reach the merits of Thomas’s claim because of some procedural default by him or his lawyer, state remedies will equally clearly have been exhausted. In this last event, Thomas may return to the District Court, which will then decide the merits of his federal constitutional claim, unless federal habeas is barred by the nature of Thomas’s procedural default, if any. Compare Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), with Fay v. Noia, 372 U.S. 391 (1963). See also Parton v. Wyrick, 614 F.2d 154 (8th Cir. 1980) ; Collins v. Auger, 577 F.2d 1107 (8th Cir. 1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1057, 59 L.Ed.2d 96 (1979); Toliver v. Wyrick, 469 F.Supp. 583, 596-603 (W.D.Mo. 1979). Reversed and remanded with instructions. . “Tr.” refers to the transcript of Thomas’s trial in the Circuit Court of St. Charles County, Missouri, State v. Thomas, No. 16858. This transcript is in the record as respondent’s Exhibit A to the Response to Order to Show Cause in the District Court. . In Parton we chose not to require exact adherence to the exhaustion requirement, which is, after all, a doctrine of comity and discretion, not of power. We follow a different course here because the possibility that Thomas has a presently available state remedy seems somewhat greater than it did in Parton. Among other things, Parton had already been through one complete, and unsuccessful, 27.26 proceeding. Eaton v. Wyrick, 528 F.2d 477 (8th Cir. 1975), in which petitioner was required to file a 27.26 motion despite the possibility that, under Missouri law, it might not be available, is closer to the present case." } ]

[ { "docid": "21499208", "title": "", "text": "have testified on his behalf; that the incriminat ing statements of his co-defendants were false and perjured; “6. That [the judge] said, after the trial, that she did not get as much cooperation out of the witnesses as she was hoping for.” In the Matter of John Wesley Hunt, P.C. No. 628, Crim.Ct. of Baltimore, July 12, 1963. While the post conviction court appointed a lawyer, no hearing was ordered. The court dismissed the petition, holding that allegations two, four and six were not supported by the transcript and that allegations one, three and five could not be considered under the Maryland Post Conviction Procedure Act. The court further held, on the inadequacy of representation point, that “[t]he mere assertion of ineptness of counsel' in the absence of any allegation of fraud or collusion with the prosecuting official, or any objection raised in the trial court is not reviewable under the Act.” No appeal was taken. Hunt then filed a petition for federal habeas corpus in which he said that he did not appeal the denial of post conviction relief because “your petitioner is following the Supreme Court Ruling of March 18, 1963 whereas you can pass State Courts.” The District Court, without conducting a hearing, dismissed the petition, holding that Hunt had deliberately by-passed his state remedies by failing to appeal the post conviction proceeding to the Court of Appeals of Maryland. C. John Nathan Bristow, Jr. — After pleading not guilty Bristow was convicted by a jury of larceny and breaking and entering. He did not appeal, but did apply for state habeas corpus. After a hearing, relief was denied on the merits. No appeal was taken and none could be taken, for Maryland law makes no provision for appeals from denials of habeas corpus. Later, Bristow petitioned for federal habeas corpus, but relief was denied on the ground that he had not exhausted his presently available state remedies, namely the avenue provided by the Post Conviction Procedure Act. The District Court dismissed the petition without prejudice to the filing of a future petition after the state remedies" }, { "docid": "14224760", "title": "", "text": "renewing in the federal courts his application for habeas relief, Pate v. Holman, 5 Cir. 1965, 341 F.2d 764, 343 F.2d 546; Blair v. People of State of California, 9 Cir. 1965, 340 F.2d 741. In reaching this conclusion, we have given weight to the following circumstances: (1) the Florida courts have not had an opportunity to consider all of the constitutional issues the petitioner now raises; (2) some of these issues turn on decisions such as Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, decided long after the petitioner’s trial; (3) some of these issues involve disputed facts outside the record and would therefore require an evidentiary hearing; (4) the Florida courts have not had the opportunity to consider the merits of the petitioner’s post-conviction case as the case would be presented by competent counsel. This is not to say that an evidentiary hearing is required on all of the petitioner’s contentions. The record of trial may be relied upon to the extent that it meets the Townsend v. Sain standards for a “full and fair” hearing. If no state remedy is available or if the prisoner fails to obtain the relief he seeks, he may then renew his application for federal habeas corpus relief. We affirm the judgment of the district court denying the petition for habeas corpus, but remand the case with directions. We direct that the district court enter an order continuing the stay of execution subject to further orders of the court and holding the proceedings in abeyance to afford Brooks a reasonable opportunity, not exceeding sixty days, to apply to the courts of Florida for post-conviction relief based on his contentions that he was deprived of certain constitutional rights. If, during the sixty-day period, Brooks fails to apply to the courts of Florida for post-conviction relief, the application for a writ of habeas corpus shall be dismissed for failure of the prisoner to exhaust state court remedies. Should Brooks apply to the Florida courts but fail to get the relief he seeks, he may, by affidavit and exhibits or" }, { "docid": "10057701", "title": "", "text": "This is especially true in light of the change in Iowa law. Untiedt, supra. The Iowa Supreme Court may well not share our view of this situation. Even so, we certainly cannot say that there is “no reason to believe that further relief is available in the state courts.” Smith v. Wolff, supra at 559. No evidentiary hearing has been held. If one is to be held, comity would dictate that it be first held in the state court, thereby giving that system of concurrent jurisdiction its opportunity to rule. Compare Losieau v. Sigler, supra at 828, and Giles v. State of Maryland, 386 U.S. 66, 81, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). An affirmance is in order. We might suggest that the United States District Court may entertain a new habeas petition from Cage on the search and seizure issue if the Iowa courts do not afford him a speedy hearing on that contention. Affirmed. . The Honorable Edward J. McManus, Chief Judge. . We find the instant situation to be distinguishable from Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), where it was conceded that the state remedies had been thoroughly exhausted, thereby vindicating state interests. See also Francisco v. Gath-right, 419 U.S. 59, 95 S.Ct. 257, 259, 42 L.Ed.2d 226 (1974); Rice v. Wolff, supra, at 1290 - 1291. . Petitioner contends that whether or not he waived his right to raise the search and seizure issue should be judged in federal court applying federal standards. Because we decide that state court relief was and is available to petitioner at the time he filed his habeas corpus petition in federal court, we do not reach the related question of whether petitioner has deliberately bypassed and therefore waived such procedures. Were we to find that there was no relief available to petitioner in state court, we would then be in the position to determine whether the district court should have held a hearing to determine the deliberate bypass issue applying federal standards. See Fay v. Noia, supra at 438-40, 83 S.Ct. 822;" }, { "docid": "20949557", "title": "", "text": "review, absent a showing of cause and actual prejudice. Petitioners have made no threshold showing of cause for the procedural default, if any there is. Milton Dale Feeney v. Calvin Auger, No. C 85-165, slip op. at 1-2 (N.D. Iowa Oct. 25, 1985) (order dismissing petition) (citation omitted). Thus, the District Court did not decide whether state remedies were presently available. It decided only that if they were not, a procedural default would bar access to the federal habeas court. Its order of dismissal did not expressly indicate whether the dismissal was without prejudice, as would be appropriate in the event of failure to exhaust presently available state remedies, or with prejudice, as would be appropriate in a case of procedural default not overcome by a showing of cause and prejudice. We hold that the District Court was correct in treating the case as a habeas petition instead of a suit under Section 1983. We vacate the order of dismissal and remand for entry of an order of dismissal without prejudice. Petitioners may attempt to pursue postconviction remedies in the courts of Iowa, and those courts can decide whether any such remedies are presently available. I. In Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841, 36 L.Ed.2d 439 (1973), the Supreme Court held that habeas corpus is the only federal remedy available to a state-prison inmate who challenges the fact or duration of his incarceration and seeks a determination that he is entitled to immediate or early release. This holding precisely covers the present case. Petitioners claim that the Iowa habitual-offender statutes, Iowa Code §§ 902.8, 902.9(2), violate the Due Process and Equal Protection Clauses and are a bill of attainder. Section 902.8 defines habitual offenders as persons, like petitioners, who have “twice before been convicted of any felony____” Such persons shall be imprisoned for up to 15 years, section 902.9(2), and “shall not be eligible for parole until [they have] served the minimum sentence of confinement of three years,” section 902.8. The theory of petitioners’ complaint is that, absent the habitual-offender statutes, they would be eligible" }, { "docid": "3322431", "title": "", "text": "a conditional writ of habeas corpus on the present record constitutes overreaching. Instead, the matter should be remanded to the district court for completion of the record and reconsideration as indicated above. . The district court’s ruling is reflected in the following excerpts from the magistrate judge's report and recommendation, approved by the district court over objection (on other grounds only): A federal court may grant relief on a petition for a writ of habeas corpus only if the applicant has exhausted the remedies available in the state court. 28 U.S.C. § 2254(b)(1)(A). Issues that must be raised in a post-conviction action pursuant to O.R.C. § 2953.21 include claims which do not appear on the face of the record and claims of ineffective assistance of trial counsel where the defendant was represented on direct appeal by the same attorney who represented him at trial. In addition to raising each claim in the appropriate forum, a habeas litigant, in order to preserve his constitutional claims for habeas review, must present those claims all the way through the Ohio courts. Since petitioner did not actually file a post-conviction petition, the state courts did not enforce a procedural bar, and it is not entirely clear that petitioner is barred from pursuing post-conviction relief. .... Thus, Ohio law does not clearly foreclose consideration of a post-conviction petition. Although such a petition would be untimely, the trial court could choose to entertain it. Petitioner still has a remedy in state court if he can file a post-conviction action to assert this claim. However, pursuant to 28 U.S.C. § 2254(b)(2), [a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state.” Report and recommendation pp. 20-25, J.A. 45-50. Thus, the magistrate judge turned to analyze the merits of petitioner's claim only after determining that it was unexhausted and after recognizing that the district court was free only to deny, not grant, the claim without first requiring exhaustion. . In footnote 5 of the majority opinion, mention" }, { "docid": "23476468", "title": "", "text": "district court properly determined that Lott had no remedy available in state court. Even assuming Lott does have a remedy in state court, however, we may nevertheless consider his unexhausted jurisdiction claim. See 28 U.S.C. § 2254(b)(2); see also Jones v. Jones, 163 F.3d 285, 299 (5th Cir.1998) (“Because ... we conclude that [petitioner] does not prevail on the merits, we may, pursuant to § 2254(b)(2), deny relief, notwithstanding Jones’ failure to exhaust state remedies.”); Hoxsie v. Kerby, 108 F.3d 1239, 1243 (10th Cir.1997) (citation omitted) (noting that, even if a habeas petitioner has an available remedy in state court, a district court may nevertheless deny the petitioner’s unex-hausted claim without permitting him an opportunity to avail himself of the remedy in state court if to do so would avoid “useless litigation” in state court). Because, for the reasons set forth herein, we conclude that Lott’s jurisdiction claim lacks merit, and any resort to the state courts would amount to a mere futility, we need not await a state court’s determination of what we have already concluded. c. Whether procedural default is excused by showing of cause and prejudice. Lott asserts that even if his jurisdiction claim is procedurally barred, he can demonstrate cause and prejudice to excuse the default. We are not persuaded. To establish cause, Lott necessarily must argue that his appellate counsel were ineffective for failing to raise the jurisdiction claim, which requires us to examine first whether his counsel’s error was so egregious as to render their assistance below that guaranteed by the Sixth Amendment, and second, whether Lott suffered prejudice as a result of his counsel’s error. See Strickland v. Washington, 466 U.S. 668, 687, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Lott can make neither showing. Lott never presented the state courts with an opportunity to review his ineffeetive-assistance-of-appellate-counsel claim as cause for the default of his jurisdiction claim, and thus, is procedurally barred from making such an argument now. See Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Even assuming, however, that Lott’s claim were not" }, { "docid": "9893625", "title": "", "text": "Perhaps this explains why the State does not argue that Petitioner has foregone his right to assert his ineffective assistance claim by failing to raise it on direct appeal. Rather, the State argues procedural default based only on Petitioner's failure to raise this claim in his first application for state post-conviction relief. While the court could address sua sponte the question of Petitioner’s possible procedural default resulting from his failure to effect a direct appeal, see Hardiman v. Reynolds, 971 F.2d 500, 502-05 (10th Cir.1992), it apparently exercises its discretion not to do so. See id. at 504 (holding that a court may raise a state procedural bar defense sua sponte, but need not do so). . Because Petitioner eventually raised his present ineffective assistance of counsel claim in the Oklahoma state courts, he has exhausted his state remedies as to this claim as required by 28 U.S.C. § 2254(b)(1)(A). See Edwards v. Carpenter, - U.S. -, 120 S.Ct. 1587, 1592, 146 L.Ed.2d 518 (2000) (where a petitioner presents his claim to the state court in a manner such that the state court will not reach it under its own procedural rules, petitioner has exhausted his state remedies); Coleman, 501 U.S. at 732, 111 S.Ct. 2546 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer 'available' to him.”). See generally Bailey v. Nagle, 172 F.3d 1299, 1306-07 (11th Cir.1999) (Carnes, J., concurring) (explaining the related doctrines of exhaustion and procedural bar). . The fundamental miscarriage of justice exception is available only where a petitioner provides the court with a colorable showing of factual innocence. Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Petitioner makes no such showing in this case. . The court’s suggestion that Petitioner had no opportunity to develop his present ineffective assistance of counsel claim in his first application for post conviction relief is incorrect. See Court's Op. at 924. As a basis for his failure to timely appeal his conviction, Petitioner could have easily" }, { "docid": "8923560", "title": "", "text": "state remedies remain available to a habeas petitioner who has not fairly presented his constitutional claim to the state courts, the exhaustion doctrine precludes a federal court from granting him relief on that claim: although a federal court now has the option of denying the claim on its merits, 28 U.S.C. § 2254(b)(2), it must otherwise dismiss his habeas petition without prejudice so that the petitioner may return to state court in order to litigate the claim.” Perruquet, 390 F.3d at 514; Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); see 28 U.S.C. § 2254(b)(1)(A). Where the petitioner has already pursued his state court remedies “and there is no longer any state corrective process available to him, it is not the exhaustion doctrine that stands in the path to habeas relief, see 28 U.S.C. § 2254(b)(1)(B)(i), but rather the separate but related doctrine of procedural default.” Perruquet, 390 F.3d at 514. See also Coleman v. Hardy, 628 F.3d 314, 318 (7th Cir.2010) (when a petitioner fails to raise a particular claim on direct appeal or in post-conviction proceedings, the claim is proeedurally defaulted). Procedural default generally precludes a federal court from reaching the merits of a habeas claim when the claim was not presented to the state courts and it is clear that the state courts would now find the claim proeedurally barred. Perruquet, 390 F.3d at 514. Procedural default may be excused, however, if the petitioner can show both cause for and prejudice from the default, or can demonstrate that the district court’s failure to consider the claim would result in a fundamental miscarriage of justice. Dretke v. Haley, 541 U.S. 386, 393, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) (a federal court will not entertain a proeedurally defaulted constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse the default); Coleman, 628 F.3d at 318 (procedural default may be avoided if a petitioner can demonstrate cause and prejudice, or a fundamental" }, { "docid": "20949556", "title": "", "text": "ARNOLD, Circuit Judge. Milton Dale Feeney and David Charles Sells, inmates at the Iowa State Penitentiary, brought this suit, purportedly under 42 U.S.C. § 1983, to challenge the constitutionality of the Iowa habitual-offender statute, Iowa Code §§ 902.8, 902.9(2). The District Court treated the suit as a petition for habeas corpus under 28 U.S.C. § 2254 and dismissed it for failure to exhaust state remedies. The Court also held, in the alternative, that if no state remedy was presently available to plaintiffs, they still could not be heard by a federal habeas court, because their own procedural defaults in the state-court system would then be a complete bar to federal habeas relief. The District Court stated its conclusion as follows: To the extent that state post-conviction procedures exist by which petitioners may challenge their convictions, they have failed to exhaust their available state remedies as required by 28 U.S.C. § 2254(b) and (c). To the extent that these remedies are now unavailable to petitioners, a procedural default has occurred which bars them from federal habeas review, absent a showing of cause and actual prejudice. Petitioners have made no threshold showing of cause for the procedural default, if any there is. Milton Dale Feeney v. Calvin Auger, No. C 85-165, slip op. at 1-2 (N.D. Iowa Oct. 25, 1985) (order dismissing petition) (citation omitted). Thus, the District Court did not decide whether state remedies were presently available. It decided only that if they were not, a procedural default would bar access to the federal habeas court. Its order of dismissal did not expressly indicate whether the dismissal was without prejudice, as would be appropriate in the event of failure to exhaust presently available state remedies, or with prejudice, as would be appropriate in a case of procedural default not overcome by a showing of cause and prejudice. We hold that the District Court was correct in treating the case as a habeas petition instead of a suit under Section 1983. We vacate the order of dismissal and remand for entry of an order of dismissal without prejudice. Petitioners may attempt to" }, { "docid": "20949567", "title": "", "text": "both cause and prejudice____ Petitioner’s [sic ] Brief p. 19. If this is true, then that showing should be made in the state court where “sufficient reason” under Iowa Code Section 663A.8 (1985) is the equivalent, or nearly so, of the Wainwright cause and prejudice. Brief for Appellee pp. 18-19. III. We hold, therefore, that the question of the present availability of a state remedy should be first presented to the Iowa post-conviction court. If the state courts hold that a remedy is available and grant the relief requested, the case will be over. If the state courts hold that a remedy is available and deny the relief requested, petitioners may return to the federal habeas court and get a decision on the merits of their case. If the state courts hold that no remedy is available, petitioners may return to the federal habeas court and attempt to persuade that court to relieve them of their state-law procedural default and reach the merits of their claim. Compare Thomas v. Wyrick, 622 F.2d 411, 414 (8th Cir.1980). We are grateful to counsel appointed by this Court for his services. Vacated and remanded with instructions to dismiss without prejudice. . The Hon. Edward J. McManus, Senior United States District Judge for the Northern District of Iowa. . This disposition may in fact be what the District Court had in mind. In a later opinion, that Court said: While it is unclear whether petitioners may yet avail themselves of state remedies, it is clear that the state courts are the ultimate authority on the availability of these remedies, and that the state courts should be presented with the first opportunity to examine the merits of petitioners’ claims. Milton Dale Feeney v. Calvin Auger, No. C 85-165, slip op. at 2 (N.D. Iowa Dec. 30, 1985) (order granting certificate of probable cause). . Petitioners do not seek damages. . The State also suggests that simple lack of knowledge of the existence of a legal issue would provide cause under Iowa law. Brief for Appellee 23. The federal standard is not so lax. . This" }, { "docid": "22616891", "title": "", "text": "while drawing on available records of prior proceedings to guide them in doing so. Of course, experience cautions that the very nature and function of the writ of habeas corpus precludes the formulation of fool-proof standards which the 225 District Judges can automatically apply. Here as elsewhere in matters of judicial administration we must attribute to them the good sense and sturdiness appropriate for men who wield the power of a federal judge. Certainly we will not get these qualities if we fashion rules assuming the contrary. But it is important, in order to preclude individualized enforcement of the Constitution in different parts of the Nation, to lay down as specifically as the nature of the problem permits the standards or directions that should govern the District Judges in the disposition of applications for habeas corpus by prisoners under sentence of State courts. First. Just as in all other litigation, a prima facie case must be made out by the petitioner. The application should be dismissed when it fails to state a federal question, or fails to set forth facts which, if accepted at face value, would entitle the applicant to relief. Care will naturally be taken that the frequent lack of technical competence of prisoners should not strangle consideration of a valid constitutional claim that is bun-glingly presented. District judges have resorted to various procedures to that end. Thus, a lawyer may be appointed, in the exercise of the inherent authority of the District Court (cf., e. g., Ex parte Peterson, 253 U. S. 300), either as an amicus or as counsel for the petitioner, to examine the claim and to report, or the judge may dismiss the petition without prejudice. Second. Failure to exhaust an available State remedy is an obvious ground for denying the application. An attempt must have been made in the State court to present the claim now asserted in the District Court, in compliance with § 2254 of the Judicial Code. Section 2254 does not, however, require repeated attempts to invoke the same remedy nor more than one attempt where there are alternative remedies." }, { "docid": "7799793", "title": "", "text": "court forthwith.”); Jones, 163 F.3d at 299 (“[O]bviously, when a federal court denies habeas relief on the merits for an unexhausted claim, concerns for comity are much less compelling than when it grants relief on such a claim.”). Furthermore, we are mindful that “there is a strong presumption in favor of requiring the prisoner to pursue his available state remedies.” Granberry, 481 U.S. at 131, 107 S.Ct. 1671; see Bear v. Boone, 173 F.3d 782 (10th Cir.1999). No exception to the exhaustion requirement, such as the futility doctrine or the lack of an available remedy in the state court appears to apply to the circumstances of this case that would rebut this presumption. Cf. Fisher, 169 F.3d at 303 (noting that exhaustion of state court remedies would be futile where highest state court recently rejected petitioner’s claim). We therefore conclude that, even if we do have discretion to consider Mercadel’s petition on the merits and are not precluded from granting relief on an unexhausted claim by AEDPA, we would not choose to exercise such discretion in this case. Instead, we are convinced that the proper remedy is to dismiss MercadeFs petition without prejudice and allow him to pursue his claim in Louisiana state court. If, after exhausting his claim in the state courts, he is ultimately unsuccessful in obtaining relief, he can, of course, re-file his application in federal district court without having to contend with the requirements under AEDPA relating to successive habeas applications. See Alexander, 163 F.3d at 909. III. CONCLUSION For the foregoing reasons, we VACATE the judgment and this case is REMANDED to the district court with instructions to dismiss without prejudice. . It also appears from the record that at some point between 1983 and 1991, Mercadel filed a “blanket” application for post-conviction relief and a motion for an extension of time within which to file a more specific application for collateral relief. Mercadel appealed the trial court’s denial of these motions to the Louisiana Supreme Court, which affirmed the trial court's dispositions on September 18, 1992. . In our order granting Mercadel a COA," }, { "docid": "22734327", "title": "", "text": "claim of double jeopardy, a claim that petitioner was denied equal protection and due process, referring specifically to, inter alia, the lack of a jury trial, and confinement in the state prison. The District Court held that the failure of petitioner’s trial counsel to file a brief in the state trial court amounted to a deliberate strategic decision to abandon petitioner’s constitutional claims; it justified the Wisconsin Supreme Court’s denial of post-conviction relief; and it operated as a bar to federal relief as well. We cannot agree with respondent or the District Court that the present record shows the deliberate bypass of state remedies that might bar federal consideration of petitioner’s claims. We conclude, however, that respondent should be given an opportunity to develop the relevant facts. Accordingly, the case must be remanded for an evidentiary hearing on this point, as well as on the merits of such claims as may be ripe for federal determination. This Court has repeatedly made it plain that not every state procedural default bars federal habeas corpus relief.' Title 28 U. S. C. §§ 2254 (b), (c), which require a state prisoner to exhaust available state remedies, are limited in their application to those state remedies still open to the habeas applicant at the time he files his application in federal court. Fay v. Noia, 372 U. S. 391, 434-435 (1963); see Picard v. Connor, 404 U. S. 270, 272 n. 3 (1971). In this case it appears that petitioner has met the requirements of the exhaustion rule, inasmuch as no direct appeal is presently available to him, and he has taken his claim for post-conviction relief to the highest state court. This Court has also held, however, that a federal habeas judge may in his discretion deny relief to an applicant who has deliberately bypassed the orderly procedure of the state courts, on the ground that in so doing he has forfeited his state court remedies. Fay v. Noia, supra, at 438-439. But such a waiver must be the product of an understanding and knowing decision by the petitioner himself, who is not" }, { "docid": "16658315", "title": "", "text": "Wyrick, 657 F.2d 222, 224 (8th Cir.1981); accord Eaton v. Wyrick, 528 F.2d 477, 482 (8th Cir.1975). The question is usually whether state law provides any presently available state procedure for determining the merits of the petitioner’s claim, not whether the state court would decide in favor of the petitioner on the merits. See, e.g., Lindner v. Wyrick, 644 F.2d 724, 727 (8th Cir.), cert. denied, 454 U.S. 872, 102 S.Ct. 345, 70 L.Ed.2d 178 (1981) (return to state court not futile because Missouri rule allows second post-conviction petition if the petitioner can show his claims are based on information not available at the time of the first petition); Thomas v. Wyrick, 622 F.2d 411, 414 (8th Cir.1980) (whether state rule barring claims not raised in direct appeal makes post-conviction remedy presently unavailable is a question of state law). Principles of comity require the federal courts to refrain from predicting a state court’s probable determination on the merits of a claim in order to avoid the exhaustion requirement. Thus, the district court’s determination that the exhaustion requirement should be disregarded as futile was in error. Because Snethen’s petition for a writ of habeas corpus contains a mixture of exhausted and unexhausted claims, and because the record contains no clear manifestation that the presentation of exhausted claims to the state court would be futile, we reverse and remand to the district court with directions to dismiss Snethen’s federal petition. . The state court has clearly considered and rejected Snethen’s state law claim that Loeffelholz's testimony violated the physician-patient privilege. . Iowa law requires a petitioner to raise all grounds for post-conviction relief in his or her first petition, unless the court finds sufficient reason for not raising the issue previously. Iowa Code Ann. § 663A.8 (Supp.1983). We leave it to the state court to initially determine whether this provision precludes state habeas relief in Snethen’s case. See Grady v. Nix, 688 F.2d 73, 74 n. 2 (8th Cir.1982); cf. Lindner v. Wyrick, 644 F.2d 724, 727 (8th Cir.), cert. denied 454 U.S. 872, 102 S.Ct. 345, 70 L.Ed.2d 178 (1981)." }, { "docid": "20949566", "title": "", "text": "or in the District Court, so it would be easy enough, in one sense, for us to go ahead and hold that they had no sufficient reason. We would then proceed to address the federal-law effect of their procedural default, under either a cause- and-prejudice or a deliberate-bypass standard, as might be appropriate. Yet, on balance, we think the better course is to dismiss this petition without prejudice and allow petitioners to obtain from the state courts a definitive decision whether a state postconviction remedy is still open. The issue is one of state law and is somewhat doubtful, as we have indicated. And the State itself seems to ask that its own courts be given the chance to decide this issue: It is also up to the state court to determine if Chapter 663A (1985) may still be used by Petitioners, that is, whether sufficient reason exists to allow them to raise the issue now despite the failure to raise it at the first opportunity____ Petitioners assert in their brief that they can show both cause and prejudice____ Petitioner’s [sic ] Brief p. 19. If this is true, then that showing should be made in the state court where “sufficient reason” under Iowa Code Section 663A.8 (1985) is the equivalent, or nearly so, of the Wainwright cause and prejudice. Brief for Appellee pp. 18-19. III. We hold, therefore, that the question of the present availability of a state remedy should be first presented to the Iowa post-conviction court. If the state courts hold that a remedy is available and grant the relief requested, the case will be over. If the state courts hold that a remedy is available and deny the relief requested, petitioners may return to the federal habeas court and get a decision on the merits of their case. If the state courts hold that no remedy is available, petitioners may return to the federal habeas court and attempt to persuade that court to relieve them of their state-law procedural default and reach the merits of their claim. Compare Thomas v. Wyrick, 622 F.2d 411, 414 (8th" }, { "docid": "20949568", "title": "", "text": "Cir.1980). We are grateful to counsel appointed by this Court for his services. Vacated and remanded with instructions to dismiss without prejudice. . The Hon. Edward J. McManus, Senior United States District Judge for the Northern District of Iowa. . This disposition may in fact be what the District Court had in mind. In a later opinion, that Court said: While it is unclear whether petitioners may yet avail themselves of state remedies, it is clear that the state courts are the ultimate authority on the availability of these remedies, and that the state courts should be presented with the first opportunity to examine the merits of petitioners’ claims. Milton Dale Feeney v. Calvin Auger, No. C 85-165, slip op. at 2 (N.D. Iowa Dec. 30, 1985) (order granting certificate of probable cause). . Petitioners do not seek damages. . The State also suggests that simple lack of knowledge of the existence of a legal issue would provide cause under Iowa law. Brief for Appellee 23. The federal standard is not so lax. . This possibility seems so unlikely as to be almost fanciful. The Iowa habitual-offender statutes appear to be of the garden variety routinely upheld against constitutional challenges. We think the administration of justice would be greatly improved if we were permitted to cut the Gordian knot and dismiss on their merits frivolous or clearly insubstantial habeas petitions, without going through the procedural gyrations of which this opinion is another unfortunate example. See Lay, C.J., concurring, in Nelson v. Solem, 714 F.2d 57 (8th Cir.1983). But, like the District Court, see Milton Dale Feeney v. Calvin Auger, No. C 85-165, slip op. at 2 n. 2 (N.D. Iowa Dec. 30, 1985) (order granting certificate of probable cause), we feel bound by higher authority to go through the exhaustion-vs.-procedural-default exercise before reaching the merits of even the plainest question. . We have considered petitioners’ arguments that the District Court erred in denying appointment of counsel and class certification. Our holdings on the more significant issues on the appeal make those questions largely meaningless, and in any event we find" }, { "docid": "20949561", "title": "", "text": "They attempt to bring this action under that line of authority by characterizing their lawsuit as an attack on the procedures by which they were sentenced. But this effort is unsuccessful; their claim challenges the very existence of a different sentence for habitual offenders, not the procedures by which it is imposed. Thus we conclude that the District Court was correct to construe the § 1983 complaint as a habeas petition. II. We have held that the case is to be treated as a habeas corpus petition under 28 U.S.C. § 2254. The next question is whether petitioners have any presently available state remedies. If they do, the petition must be dismissed without prejudice for failure to exhaust. Both Feeney and Sells pleaded guilty to being habitual offenders. Neither of them made a motion in arrest of judgment under Iowa R.Crim.P. 23(3)(a), which may be a state-law prerequisite to raising on direct appeal the constitutionality of the habitual-offender statute. Sells did not appeal his conviction at all and has not sought post-conviction relief. Feeney appealed, but the issue presently at stake was not raised as part of his appeal, and the appeal was, in any case, dismissed when his lawyer (not the lawyer now representing him) asked to withdraw. Feeney then filed a state-court petition for postconviction relief, raising the habitual-offender issue, and that petition is still pending. Brief for Appellants 17. Petitioners both argue on appeal to us that on this state of the record they have no available state remedies. Some of the points made in support of this argument may be rejected out of hand. Feeney says there have been “considerable delays,” Brief for Appellants 17, in his post-conviction proceeding, and that therefore it cannot afford him an adequate remedy. We cannot accept such a vague contention. We do not know how long ago the proceeding was filed, or what the reasons for any delay may be. We will not assume, at least without more precise information, that the courts of Iowa will not decide this proceeding with reasonable expedition. In addition, both Feeney and Sells suggest" }, { "docid": "14393998", "title": "", "text": "Woods’s' state habeas petition, for we cannot be certain whether the denial was based on the merits of his claims or on the escape rule. Further, we find that, due to an erroneous factual assumption, the district court could not have adequately performed the analysis required by Perko v. Bowers, 945 F.2d 1038 (8th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1482, 117 L.Ed.2d 624 (1992). However, we need not address these issues because we find, on the unique facts of this case, that Woods has not exhausted his state remedies. Exhaustion of state remedies is a prerequisite for federal habeas review. 28 U.S.C. § 2254(b). Woods has exhausted his ordinary state remedies of direct appeal, post-conviction motions, and state habeas. However, he has yet available one extraordinary and unexhausted state remedy. That is .a motion to the Supreme Court of Missouri to recall the mandate. See Reimers v. Frank B. Connet Lumber Co., 273 S.W.2d 348 (Mo.1954). While ordinarily we do not require federal habeas petitioners to attempt this last and rarely available remedy, we suspect that Woods has a real possibility of qualifying for such relief and prefer that the Supreme Court of Missouri definitively answer the question. Compare Barks v. Armontrout, 872 F.2d 237, 239 (8th Cir.1989) (exhaustion is satisfied where court convinced that petitioner’s attempts to seek further state court relief would be futile) with Feeney v. Auger, 808 F.2d 1279, 1282-83 (8th Cir.1986) (remand for dismissal without prejudice appropriate where seemingly defaulted state court remedy may be open for peculiar question at hand). In Missouri, a motion to recall the mandate may be granted in certain situations, such as when there has been a prejudicial mistake of fact, a deprivation of constitutional rights, or when there has. been a recent United States Supreme Court decision contrary to the Missouri appellate decision in issue. See State v. Thompson, 659 S.W.2d 766, 768-69 (Mo.1983) (en banc); Reimers, 273 S.W.2d at 349. Woods may qualify on all of the above grounds for a motion to recall the mandate. There appears to have been a prejudicial mistake of" }, { "docid": "16764222", "title": "", "text": "Oregon’s time limit for filing petitions for post-conviction relief bar Smith from now returning to state court to exhaust his remedies. Or.Rev.Stat. § 138.510(3) (2005). Smith presents two arguments on appeal to excuse his failure to raise his claims before the Oregon courts, neither of which help him. Smith notes that, despite a petitioner’s failure to exhaust his state remedies, a federal court will consider the merits of a federal habeas petition when “circumstances exist that render [the state post-conviction] process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(ii). First, Smith argues that Oregon’s post-conviction process was ineffective because, with respect to his first petition, the original post-conviction court denied his request for new counsel and, on appeal, the state court denied Smith’s request to depose his trial counsel and the prosecutor. Second, Smith argues that Oregon’s post-conviction process was ineffective because the post-conviction trial court denied his second petition by holding that it could not allow relief based on newly-discovered evidence of actual innocence under Or.Rev.Stat. § 138.530(1) (2005). Smith claims that this ruling establishes that Oregon’s post-conviction process was ineffective to protect his rights because it prevents the state post-conviction court from considering evidence of actual innocence. Therefore, Smith argues that his failure to exhaust state remedies should be excused under 28 U.S.C. § 2254(b)(l)(B)(ii). We need not reach the merits of either of these arguments, however, because these excuses for failure to exhaust are irrelevant to our present inquiry. Smith needs no excuse from the exhaustion requirement because he has technically exhausted his state remedies through his procedural default. The Supreme Court has noted that “[a] habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available’ to him.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In cases such as this, where a petitioner did not properly exhaust state remedies and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would" }, { "docid": "10911401", "title": "", "text": "re-submittal of his presently exhausted claims or submittal of all his claims after complete exhaustion of available state remedies. . Nor does this case fall within any of the various exceptions to the exhaustion doctrine. See cases cited in Anderson v. South Carolina, 542 F.Supp. 725, 731 n. 11 (D.S.C.1982). . In ruling on respondents’ contention that petitioner’s claims which previously appeared in his pro se assignments of error are barred for failure to exhaust available state remedies, the court is mindful of the distinction between the doctrine of exhaustion and the doctrine of procedural default. See Hart & Wechsler The Federal Courts and the Federal System, 1481 et seq. (P. Bator, J. Mishkin, D. Shapiro & H. Wechsler 2d ed. 1973 and Supp.1981) (procedural default and exhaustion “distinct questions”). A dismissal on the basis of exhaustion is no barrier to subsequent federal habeas proceedings following unsuccessful exhaustion of state remedies. A dismissal on the basis of procedural default goes to the merits, and bars any subsequent federal habeas proceedings on the claim. The doctrine of procedural default holds that if petitioner has previously failed to comply with a fair and reasonable procedural rule, he has forfeited the right to a decision on the merits in a federal habeas petition. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977) (absent a showing of “cause” or “prejudice”, a state procedural default barring direct state appellate review will bar federal habeas review). In ruling that petitioner’s available state remedies are not exhausted, this court does not reach the issue whether petitioner is barred from federal habeas relief on the grounds of procedural default. . It may be that the state courts will find petitioner did receive a full and fair opportunity to appeal these claims sufficient to preclude any state habeas proceeding. If such is the case, at least there will then be no doubt whether petitioner’s claims have been exhausted in any subsequent federal habeas proceeding petitioner may bring. In addition, the procedural default issue (see footnote 2) will be in sharper focus." } ]

[ { "docid": "22617296", "title": "", "text": "we can glean from the history of practice in this country and in England, requires such a case-by-case adjudication. A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment. IV The search of respondent’s person conducted by Officer Jenks in this case and the seizure from him of the heroin, were permissible under established Fourth Amendment law. While thorough, the search partook of none of the extreme or patently abusive characteristics which were held to violate the Due Process Clause of the Fourteenth Amendment in Rochin v. California, 342 U. S. 165 (1952). Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that Jenks did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed. Having in the course of a lawful search come upon the crumpled package of cigarettes, he was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled" } ]

[ { "docid": "885108", "title": "", "text": "At the suppression hearing a witness, Bill Temps, was called to verify his reporting the vehicle in early November as the one used by two black males who were observed leaving the scene of a burglary. The evidence showed that the “wanted” label for the auto should have been removed from the police computer lists since the individuals wanted for the burglary had been apprehended before November 26, 1973, the date of defendant’s arrest. . It was only after the weapon was found that the officers announced their intent to arrest all of the subjects on the charge of possession of the weapon as well as their intent to arrest the driver for the traffic violations. . Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). . Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). . The fact that the vehicle was no longer actually “wanted” is immaterial to the officers’ state of mind at the time the information was given to them. A police officer is entitled to view information supplied via police radio as a trustworthy basis for his actions. Klingler v. United States, 409 F.2d 299, 303 (8th Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969). . Robinson and Gustafson permit the search of the person incident to a custodial arrest not only on the basis of possible subjective fear of the arresting officer, but on well-established principles governing a search incident to lawful arrest. As the Supreme Court observed in Robinson: A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment. 414 U.S. at 235," }, { "docid": "23162842", "title": "", "text": "claim and the plaintiffs have not appealed that judgment, this issue is not before us. V. Defendant officers next appeal the district court’s denial of qualified immunity on the illegal search claim, which stemmed from the' pat-down search of Walton. We find that the district court erred in denying qualified immunity to the officers on this claim. Because the district court held that the officers were entitled to qualified immunity on the illegal stop claim, and because Walton was searched only after Birberick informed her that she was being placed under arrest, the search of Walton can be viewed as a valid search incident to a valid arrest. Although issues of fact exist about whether the search was merely a pat-down search or a full-blown search, these factual issues are not material. Even under Walton’s version of the search, it was not an unreasonable search incident to arrest. A search incident to arrest need not be a limited one, but may be a full search of the person for weapons and evidence. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). See also United States v. Robinson, 414 U.S. 218, 235, 94 S;Ct. 467, 477, 38 L.Ed.2d 427 (1973). As the Robinson Court noted: A police officer’s determination as to how and where to search the person of a sus pect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search ... [I]n the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but it is also a “reasonable” search under that Amendment. 414 U.S. at 235, 94 S.Ct. at 477. Because a full-blown search is justified if it is a search incident to arrest, the only remaining question is whether the search gave rise to a section 1983 claim because it violated a policy of the Southfield Police Department. The district court held" }, { "docid": "14238637", "title": "", "text": "However, the authority to conduct a search incident to an arrest, once established, still exists even after the need to disarm and prevent the destruction of evidence have been dispelled. “The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973). We hold, therefore, that the search of Appellant’s suitcase was lawfully conducted incident to his arrest. See United States v. Burch, 471 F.2d 1314 (6th Cir. 1973). The judgment of the District Court is affirmed. EDWARDS, Circuit Judge (concurring). If I considered the constitutionality of the warrantless search of appellant’s suitcase to be open for our review, I would find it a difficult problem. See United States v. Mehciz, 437 F.2d 145, 150 (9th Cir. 1971) (Ely, J., dissenting). Since, however, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v Mehciz, 437 F.2d 145 (9th Cir. 1971), and United States v. Burch, 471 F.2d 1314 (6th Cir. 1973), all directly point to affirmance, to say nothing of a recent Supreme Court decision in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), I concur." }, { "docid": "22710821", "title": "", "text": "police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” Id., at 235. Accord, Gustafson v. Florida, 414 U. S. 260 (1973). Under this doctrine, a search of personal effects need not be contemporaneous with the arrest, and indeed may be delayed a number of hours while the suspect remains in lawful custody. United States v. Edwards, 415 U. S. 800 (1974). A second series of decisions concerns the consequences of custodial arrest of a person driving an automobile. The car may be impounded and, with probable cause, its contents (including locked compartments) subsequently examined without a warrant. Texas v. White, 423 U. S. 67 (1975); Cady v. Dombrowski, 413 U. S. 433, 439-448 (1973); Chambers v. Maroney, 399 U. S. 42, 47-52 (1970). Moreover, once a car has been properly impounded for any reason, the police may follow a standard procedure of inventorying its contents without any showing of probable cause. South Dakota v. Opperman, 428 U. S. 364 (1976). I would apply the rationale of these two" }, { "docid": "21354926", "title": "", "text": "searches: “(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial.” Knowles v. Iowa, 525 U.S. 113, 116, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) (citing Robinson, 414 U.S. at 234, 94 S.Ct. 467). The Court stated in Robinson: A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only .an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment. 414 U.S. at 235, 94 S.Ct. 467. Accordingly, the Court condoned “a relatively extensive exploration of the person,” id. at 227, 94 S.Ct. 467 (quoting Terry, 392 U.S. at 25, 88 S.Ct. 1868), but stated that it would find unconstitutional a search that was “extreme or patently abusive.” Id. at 236, 94 S.Ct. 467. Campbell argues that Robinson does not apply at all to his case, because it speaks only of custodial searches, and (in keeping with the Superior Court Order) he was not taken into custody. He points out that Robinson explicitly recognized that “the danger to an officer is far greater" }, { "docid": "22168200", "title": "", "text": "S.Ct. 2605, 2609, 77 L.Ed.2d 65 (1983). The search incident to arrest exception arose because of the need “to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape” and the need to prevent the concealment or destruction of evidence. Chimel v. California, 395 U.S. at 763, 89 S.Ct. at 2040. Initially, the Supreme Court attempted to tie strictly the scope of the search to “‘the circumstances which rendered its initiation permissible,’ ” id. at 762, 89 S.Ct. at 2039 (quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968)), but the Court subsequently rejected that position in United States v. Robinson. The majority in Robinson was unwilling to place on the arresting officer the burden of deciding in each case “whether or not there [is] present one of the reasons supporting the authority for a search of the person incident to a lawful arrest.” 414 U.S. at 235, 94 S.Ct. at 476. It recognized that a “police officer’s determination as to how and where to search the person of a suspect '... is necessarily a quick ad hoc judgment,” and that the danger of concealed weapons alone provides “an adequate basis for treating all custodial arrests alike for purposes of search justification.” Id. Consequently, the Court held that once an arrest based on probable cause has been made, no further examination into probable cause for the scope of the search is necessary; it concluded that the foundation of the search incident to arrest exception flows automatically from the fact of arrest: A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search" }, { "docid": "22531901", "title": "", "text": "arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.\" Ibid. Instead, a \"custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.\" Ibid. The Court thus concluded that the search of Robinson was reasonable even though there was no concern about the loss of evidence, and the arresting officer had no specific concern that Robinson might be armed. Id., at 236, 89 S.Ct. 2034. In doing so, the Court did not draw a line between a search of Robinson's person and a further examination of the cigarette pack found during that search. It merely noted that, \"[h]aving in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it.\" Ibid. A few years later, the Court clarified that this exception was limited to \"personal property ... immediately associated with the person of the arrestee.\" United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (200-pound, locked footlocker could not be searched incident to arrest), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). The search incident to arrest trilogy concludes with Gant, which analyzed searches of an arrestee's vehicle. Gant, like Robinson, recognized that the Chimel concerns for officer safety and evidence preservation underlie the search incident to arrest exception. See 556 U.S., at 338, 129 S.Ct. 1710. As a result, the Court concluded that Chimel could authorize police to search a vehicle \"only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.\" 556 U.S., at 343, 129 S.Ct. 1710.Gant added, however, an independent exception for a warrantless search of a vehicle's passenger compartment \"when it is 'reasonable to believe" }, { "docid": "21354925", "title": "", "text": "consider “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id. As we have previously observed, “The more intrusive the search, the closer governmental authorities must come to demonstrating probable cause for believing that the search will uncover the objects for which the search is being conducted.” Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983) (citing Terry v. Ohio, 392 U.S. 1, 18 n. 15, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The first question we must resolve in Campbell’s appeal is whether the police were justified in conducting a body cavity search at all. The parties agree that the search here was incident to Campbell’s arrest for possession of marijuana. In United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the Supreme Court reaffirmed the broad scope of authority the police possess to conduct searches incident to arrest. Robinson recognized two distinct historical rationales for allowing such searches: “(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial.” Knowles v. Iowa, 525 U.S. 113, 116, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) (citing Robinson, 414 U.S. at 234, 94 S.Ct. 467). The Court stated in Robinson: A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion" }, { "docid": "22710820", "title": "", "text": "unfortunate that the Government sought a reversal in this case primarily to vindicate an extreme view of the Fourth Amendment that would restrict the protection of the Warrant Clause to private dwellings and a few other “high privacy” areas. I reject this argument for the reasons stated in Parts (2) and (3) of the Court’s opinion, with which I am in general agreement. The over-broad nature of the Goverment’s principal argument, however, has served to distract the Court from the more important task of defining the proper scope of a search incident to an arrest. The Court fails to accept the opportunity this case presents to apply the rationale of recent decisions and develop a clear doctrine concerning the proper consequences of custodial arrest. Accordingly, I dissent from the judgment. I One line of recent decisions establishes that no warrant is required for the arresting officer to search the clothing and effects of one placed in custodial arrest. The rationale for this was explained in United States v. Robinson, 414 U. S. 218 (1973): “A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to" }, { "docid": "14238636", "title": "", "text": "a search made subsequent to a valid arrest. Incident to making a lawful custodial arrest, a full search of the person may be made without a warrant. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Our question is whether that search may extend to the suitcase Appellant was carrying with him. We find that it can. A search incident to arrest may extend to “the arrestee’s person and the area ‘within his immediate control’ construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). Appellant’s suitcase was within that area at the time of his arrest. It is true, as Appellant contends, that.Appellant had been subdued and presented no danger to the police at the time the suitcase was opened. Nor was there the* possibility that the evidence in the suitcase would be destroyed as the suitcase was under the control of the police. However, the authority to conduct a search incident to an arrest, once established, still exists even after the need to disarm and prevent the destruction of evidence have been dispelled. “The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” United States v." }, { "docid": "1282924", "title": "", "text": "at 767-68, 89 S.Ct. at 2043 (quoting United States v. Kirschenblatt, 16 F.2d 202, 203 (2d Cir.1926)) (emphasis added). . Chimel, 395 U.S. at 768, 89 S.Ct. at 2043. . Although United States v. Robinson provides that the \"authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect,” 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973), and that rationale was extended to searches within an arrestee's area of immediate control in New York v. Belton, 453 U.S. 454, 461, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981), see United States v. Johnson, 846 F.2d 279, 282 (5th Cir.), cert. denied, 488 U.S. 995, 109 S.Ct. 562, 102 L.Ed.2d 587 (1988), Officer Sterrett’s sworn statements leave us without doubt that the purposes were never served. Thus an inquiry into the probability that the purposes were being served is unnecessary in light of the record and Supreme Court precedent and unnecessary for resolution of this case. .This is not to say that Officer Sterrett's improper intent in pursuing the search incident to arrest would invalidate an otherwise valid search. See United States v. Causey, 834 F.2d 1179 (5th Cir.1987). Here, the search was invalid because it occurred outside the area within Johnson's immediate control. . 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). . See Belton, 453 U.S. at 460 n. 3, 101 S.Ct. at 2864 n. 3: Our holding today does no more than determine the meaning of Chimel's principles in this particular and problematic content. It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests. . 846 F.2d 279 (5th Cir.), cert. denied, 488 U.S. 995, 109 S.Ct. 562, 102 L.Ed.2d 587 (1988). . Id. at 283. . The government cites United States v. De" }, { "docid": "22684298", "title": "", "text": "booking and jailing the suspect. The justification for such searches does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search. Indeed, we have previously established that the inventory search constitutes a well-defined exception to the warrant requirement. See South Dakota v. Opperman, supra. The Illinois court and respondent rely on United States v. Chadwick, 433 U. S. 1 (1977), and Arkansas v. Sanders, 442 U. S. 753 (1979); in the former, we noted that “probable cause to search is irrelevant” in inventory searches and went on to state: “This is so because the salutary functions of a warrant simply have no application in that context; the constitu tional reasonableness of inventory searches must be determined on other bases.” 433 U. S., at 10, n. 5. A so-called inventory search is not an independent legal concept but rather an incidental administrative step following arrest and preceding incarceration. To determine whether the search of respondent’s shoulder bag was unreasonable we must “balanc[e] its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Delaware v. Prouse, 440 U. S. 648, 654 (1979). In order to see an inventory search in proper perspective, it is necessary to study the evolution of interests along the continuum from arrest to incarceration. We have held that immediately upon arrest an officer may lawfully search the person of an arrestee, United States v. Robinson, 414 U. S. 218 (1973); he may also search the area within the arrestee’s immediate control, Chimel v. California, 395 U. S. 752 (1969). We explained the basis for this doctrine in United States v. Robinson, supra, where we said: “A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to" }, { "docid": "22168201", "title": "", "text": "as to how and where to search the person of a suspect '... is necessarily a quick ad hoc judgment,” and that the danger of concealed weapons alone provides “an adequate basis for treating all custodial arrests alike for purposes of search justification.” Id. Consequently, the Court held that once an arrest based on probable cause has been made, no further examination into probable cause for the scope of the search is necessary; it concluded that the foundation of the search incident to arrest exception flows automatically from the fact of arrest: A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment. Id. Robinson establishes, therefore, that a police officer does not have to assess the likelihood that the individual arrestee is possessing a weapon or concealing evidence but may undertake a “full search” of an arrested person aimed toward the discovery of weapons, instruments of escape, and evidence that could otherwise be concealed or destroyed. It is worth noting, however, that in reaching this conclusion the Court was concerned mainly with whether a search calculated to disarm the suspect and to preserve evidence on the suspect’s person could be undertaken, regardless of the reason for the arrest, not with the intensity of the particular search itself. The Court did not suggest that a person validly arrested may be subject to any search the arresting officer feels is necessary. The majority merely concluded that because each arrest brings with it certain factors — dangers to and the need for ad hoc judgments by the police — the application of a straightforward rule that always permits a concomitant “full search” incident to custodial arrest aimed" }, { "docid": "4473227", "title": "", "text": "necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973). 1. Contemporaneous With the Arrest Here, the search of the closet was contemporaneous with the arrest. Indeed, the district court found — based on the testimony of Agent Dolan — that, immediately after Mr. Queen’s arrest, Agent Dolan “stepped back into the closet to the area from which he had removed Mr. Queen, and looked around and there was the gun on the floor.” Tr. of Apr. 7, 1987 at 111. As the Tenth Circuit recently has observed, “[i]n a suppression hearing, the trial judge’s determinations which rest upon credibility and reasonable inferences will not be set aside unless clearly erroneous.” United States v. Skowronski, 827 F.2d 1414, 1417 (10th Cir.1987). Accordingly, we are required to accept the court’s determination. See id.; United States v. Oglesby, 764 F.2d 1273, 1278 (7th Cir.1985) (factual findings of district court in ruling on motion to suppress are subject to clearly erroneous standard of review); United States v. Streich, 759 F.2d 579, 585 (7th Cir.) (same), cert. denied, 474 U.S. 860, 106 S.Ct. 172, 88 L.Ed.2d 142 (1985). 2. Conducted to Prevent Seizure of Weapon The agents had a lawful bench warrant for Mr. Queen’s arrest. The district court found as a fact that the agents knew Mr. Queen was a felon who had not surrendered himself pursuant to a court order. The court also found that the agents were aware that Mr. Queen had carried a handgun in the past and that he might be armed and dangerous. Moreover, when the agents" }, { "docid": "9752476", "title": "", "text": "to pose at least some unpredictable, albeit slight, risk to the security of the officers or the evidence {e.g., arrestee handcuffed in back of guarded police cruiser), we do not understand him to chal-Ienge the great weight of authority which holds that Beltons bright-line rule applies even in cases where the arrestee is under physical restraint and at some distance from the automobile during the search. See, e.g., United States v. Jackson, 918 F.2d 236, 240 (1st Cir.1990) (arres-tee handcuffed in police cruiser); United States v. White, 871 F.2d 41, 43 (6th Cir.1989) (in police cruiser); United States v. Karlin, 852 F.2d 968, 970-71 (7th Cir.1988) (handcuffed in police cruiser), cert. denied, 489 U.S. 1021, 109 S.Ct. 1142, 103 L.Ed.2d 202 (1989); United States v. Cotton, 751 F.2d 1146, 1148 (10th Cir.1985) (handcuffed); United States v. Collins, 668 F.2d 819, 821 (5th Cir.1982) (same); see also Traylor v. State, 458 A.2d 1170, 1174 (Del.1983) (outside car, handcuffed); State v. Wheaton, 121 Idaho 404, 825 P.2d 501, 502-03 (1992) (handcuffed in police cruiser); State v. Miskolczi, 123 N.H. 626, 465 A.2d 919, 920-21 (1983) (same); State v. Hensel, 417 N.W.2d 849, 852-53 (N.D.1988) (same); State v. Fladebo, 113 Wash.2d 388, 779 P.2d 707, 711-12 (1989) (in cruiser); cf. United States v. Vasey, 834 F.2d 782, 787 (9th Cir.1987) (citing United States v. Abel, 707 F.2d 1013, 1015 n. 3 (9th Cir.1983)). . The Belton bright-line rule likewise extends to any container within the passenger compartment even though its outward appearance might foreclose the possibility that it could hold a weapon or evidence: \"The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.\" Belton," }, { "docid": "22679752", "title": "", "text": "standards by the absence of probable fruits or further evidence of the particular crime for which the arrest is made.”. Ante, at 234. Neither Chimel v. California, 395 U. S. 752 (1969), nor Peters v. New York, 392 U. S. 40 (1968), relied upon by petitioner, purported to limit the traditional authority of the arresting officer to conduct a full search of the person of an arrestee incident to a lawful custodial arrest. United States v. Robinson, ante, at 225-226, 228-229. Indeed, as our decision in Robinson indicates, not only has this been established Fourth Amendment law since the decision in Weeks v. United States, 232 U. S. 383 (1914), but it was also the rule both at common law and in the early development of American law. United States v. Robinson, ante, at 230-233. Though the officer here was not required to take the petitioner into custody by police regulations as he was in Robinson, and there did not exist a departmental policy establishing the conditions under which a full-scale body search should be conducted, we do not find these differences determinative of the constitutional issue. Id., at 223 n. 2. It is sufficient that the officer had probable cause to arrest the petitioner and that he lawfully effectuated the arrest and placed the petitioner in custody. In addition, as our decision in Robinson makes clear, the arguable absence of “evidentiary” purpose for a search incident to a lawful arrest is not controlling. Id., at 233. “The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” Id., at 235. II We hold, therefore, that upon arresting petitioner for the offense of driving his automobile without possession of a valid operator’s license, and taking him into custody, Smith was entitled to make a full search of petitioner’s person incident to that lawful arrest. Since" }, { "docid": "22684299", "title": "", "text": "individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Delaware v. Prouse, 440 U. S. 648, 654 (1979). In order to see an inventory search in proper perspective, it is necessary to study the evolution of interests along the continuum from arrest to incarceration. We have held that immediately upon arrest an officer may lawfully search the person of an arrestee, United States v. Robinson, 414 U. S. 218 (1973); he may also search the area within the arrestee’s immediate control, Chimel v. California, 395 U. S. 752 (1969). We explained the basis for this doctrine in United States v. Robinson, supra, where we said: “A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” 414 U. S., at 235 (emphasis added). An arrested person is not invariably taken to a police station or confined; if an arrestee is taken to the police station, that is no more than a continuation of the custody inherent in the arrest status. Nonetheless, the factors justifying a search of" }, { "docid": "9752477", "title": "", "text": "123 N.H. 626, 465 A.2d 919, 920-21 (1983) (same); State v. Hensel, 417 N.W.2d 849, 852-53 (N.D.1988) (same); State v. Fladebo, 113 Wash.2d 388, 779 P.2d 707, 711-12 (1989) (in cruiser); cf. United States v. Vasey, 834 F.2d 782, 787 (9th Cir.1987) (citing United States v. Abel, 707 F.2d 1013, 1015 n. 3 (9th Cir.1983)). . The Belton bright-line rule likewise extends to any container within the passenger compartment even though its outward appearance might foreclose the possibility that it could hold a weapon or evidence: \"The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.\" Belton, 453 U.S. at 461, 101 S.Ct. at 2864 (citing United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973)) (emphasis added). . We need not consider whether the time span between an automobile-related arrest and the initiation of a warrantless search of the passenger compartment might become so protracted as to raise judicial eyebrows in an exceptional case, see, e.g., United States v. Vasey, 834 F.2d 782, 787 (9th Cir. 1987) (distinguishing invalid automobile search, occurring 30-45 minutes after arrest, from searches which “followed closely on the heels of the arrest”), since this is anything but an exceptional case. The officers initiated the three-minute contemporaneous search immediately after Doward was placed under arrest, and completed it within thirty seconds after he was transported from the scene. Compare United States v. Lugo, 978 F.2d 631,. 634 (10th Cir.1992) (invalidating search initiated after arrestee left scene) with United States v. McCrady, 714 F.2d 868, 871-72 (8th Cir.1985) (upholding search initiated after. arrestee left scene). . Indeed, as the dissent noted, see" }, { "docid": "5511179", "title": "", "text": "for driving with a revoked license, and in conducting a pat down, the arresting officer felt an object that he could not identify in Robinson’s coat pocket. Id. at 220-23, 94 S.Ct. 467. He removed the object, which turned out to be a cigarette package, and then felt the package and determined that it contained something other than cigarettes. Upon opening the package, the officer found fourteen capsules of heroin. Id. at 223, 94 S.Ct. 467. The Court held that the warrantless search of the cigarette package was valid, explaining that the police have the authority to conduct “a full search of the person” incident to a lawful arrest. Id. at 235, 94 S.Ct. 467. Robinson reiterated the principle, discussed in Chimel, that “[t]he justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial.” Id. at 234, 94 S.Ct. 467. However, the Court also said the following: The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrést situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident, to the arrest requires no additional justification. Id. at 235, 94 S.Ct. 467. The following year, the Court decided United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). Edwards was arrested on suspicion of burglary and detained at a local jail. After his arrest, police realized that Edwards’s clothing, which he was still wearing, might contain paint chips tying him to the burglary. The police seized the articles of clothing and examined them for paint fragments. Id. at 801-02," }, { "docid": "4473226", "title": "", "text": "(9th Cir.1987). As an exception to the warrant requirement, “the scope of such a search has been narrowly drawn and carefully delineated to accommodate only those interests it was created to serve.” Graham, 638 F.2d at 1114; see Arkansas v. Sanders, 442 U.S. 753, 759-60, 99 S.Ct. 2586, 2590-91, 61 L.Ed.2d 235 (1979). The Supreme Court articulated these precise interests in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In Chimel, the Court held that government agents may conduct a limited search incident to arrest in the immediate area surrounding the arrestee. Id. at 763, 89 S.Ct. at 2040. The Supreme Court repeatedly has affirmed the validity of this type of warrantless search, provided that the search was contemporaneous with the arrest, was conducted to prevent seizure of a weapon or destruction of evidence, and was limited to the area within the arrestee’s immediate control. In evaluating these factors, [a] police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973). 1. Contemporaneous With the Arrest Here, the search of the closet was contemporaneous with the arrest. Indeed, the district court found — based on the testimony of Agent Dolan — that, immediately after Mr. Queen’s arrest, Agent Dolan “stepped back into the closet to the area from which he had removed Mr. Queen, and looked around and there was the gun on the floor.” Tr. of Apr. 7, 1987 at 111. As the Tenth" } ]

[ { "docid": "22724340", "title": "", "text": "required by section 598.5, must state that the petitioner has been for the last year a resident of the state, specifying the county in which the petitioner has resided, and the length of such residence therein after deducting all absences from the state; and that the maintenance of the residence has been in good faith and not for the purpose of obtaining a marriage dissolution only.” Iowa Code § 598.9 (1973) requires dismissal of the action “[i]f the averments as to residence are not fully proved.” In their answer to the complaint, appellees asserted that the court lacked jurisdiction over the State by virtue of the Eleventh Amendment, but thereafter abandoned this defense to the action. While the failure of the State to raise the defense of sovereign immunity in the District Court would not have barred Iowa from raising that issue in this Court, Edelman v. Jordan, 415 U. S. 651 (1974) ; Ford Motor Co. v. Department of Treasury of Indiana, 323 U. S. 459 (1945), no such defense has been advanced in this Court. The failure of Iowa to raise the issue has likewise left us without any guidance from the parties’ briefs as to the circumstances under which Iowa law permits waiver of the defense of sovereign immunity by attorneys representing the State. Our own examination of Iowa precedents discloses, however, that the Iowa Supreme Court has held that the State consents to suit and waives any defense of sovereign immunity by entering a voluntary appearance and defending a suit on the merits. McKeown v. Brown, 167 Iowa 489, 499, 149 N. W. 593, 597 (1914). The law of Iowa on the point therefore appears to be different from the law of Indiana treated in Ford, supra. Our request that the parties address themselves to Younger v. Harris, 401 U. S. 37 (1971), and related cases, indicated our concern as to whether either this Court or the District Court should reach the merits of the constitutional issue presented by the parties in light of appellant Sosna’s failure to appeal the adverse ruling of the State District" } ]

[ { "docid": "16957990", "title": "", "text": "as to the DAAs. 785 F.Supp. 854. The disappointed parties appeal. II The district court assigned Cal Expo and the DAAs the burden of proving their entitlement to Eleventh Amendment' immunity. On appeal, the DAAs say that the court erred because their motion went to the district court’s jurisdiction, and it is established that the party asserting jurisdiction has a continuing burden to establish that jurisdiction is proper. See, e.g., McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936) (the party “seeking relief ... must carry throughout the litigation the burden of showing that he is properly in court”). The Supreme Court has held that “the Eleventh Amendment defense ... partakes of the nature of a jurisdictional bar” insofar as it may be raised for the first time on appeal. Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974). The Court has emphasized, however, that it has “never held that [the defense] is jurisdictional in the sense that it must be raised and decided by [the court] on its own motion.” Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 516 n. 19, 102 S.Ct. 2557, 2567 n. 19, 73 L.Ed.2d 172 (1982). The Court has accordingly recognized that Eleventh Amendment immunity, unlike a true jurisdictional bar, may be expressly waived, Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985), Pennkurst State School and Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984), and may even be forfeited by the State’s failure to assert it. See Blatchford v. Native Village of Noatak, — U.S. -, - n. 3, 111 S.Ct. 2578, 2584 n. 3, 115 L.Ed.2d 686 (1991) (noting that, in Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), “[s]ince Montana had not objected in this Court on sovereign immunity grounds, its immunity had been waived and was not at issue.”). Eleventh Amendment immunity thus does not implicate" }, { "docid": "7595380", "title": "", "text": "Pre-Trial Order. Apparently, however, they did not pursue the defense, and the trial judge failed to rule on it. An eleventh amendment defense is jurisdictional and may be raised for the first time on appeal. Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 1362-63, 39 L.Ed.2d 662 (1974) (citing Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466-67, 65 S.Ct. 347, 351-52, 89 L.Ed. 389 (1945)). Further, it may be argued on appeal even if it was raised but abandoned at the trial level. See Sosna v. Iowa, 419 U.S. 393, 396 n. 2, 95 S.Ct. 553, 555 n. 2, 42 L.Ed.2d 532 (1975). The plaintiff argues that Patsy v. Board of Regents, 457 U.S. 496,102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), retreated from the broad holdings of Edelman and Ford Motor. However, since Patsy, the Supreme Court has reaffirmed that an eleventh amendment defense may be raised at any time in the proceedings. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 99 n. 8, 104 S.Ct. 900, 907 n. 8, 79 L.Ed.2d 67 (1984). We sympathize with the trial court and the plaintiff when they have been “sand bagged” as they were on this issue. However, the cases dictate this post-trial revision of the issues. ■ B. Are the Defendants Estopped from Raising the Defense? The plaintiff further asserts that the school board should be estopped from raising the eleventh amendment defense. The action was initially against the board members in both their individual and official capacities. During trial, plaintiff dropped his claims against the board members in their individual - capacities. Three exchanges between the court and the attorneys are important. In the first exchange, the court addressed the plaintiffs attorney and asked him whether plaintiff wanted a jury instruction for punitive damages. The judge suggested that explaining and distinguishing between the claims against defendants in their individual and official capacities would confuse the jury. In essence, the court recommended that plaintiff drop one of the claims, preferably the claim against defendants in their individual capacities. Although present, the school board’s attorney" }, { "docid": "22738217", "title": "", "text": "the United States District Court for the District of Utah and filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Id. at 12-14, 76-91. After conducting a hearing on defendants’ motion in December 1996, the district judge entered his memorandum and order, finding that Kathi failed to allege the violation of a constitutional right under § 1983, and granting defendants’ motion to dismiss with prejudice under Rule 12(b)(6) with respect to the sole federal claim. Id. at 152-160. The judge declined then to entertain the supplemental state law claims and dismissed them without prejudice. II At oral argument before this court, counsel for defendants raised for the first time the Eleventh Amendment as a defense to plaintiff-appellant’s claim. Because the Eleventh Amendment defense has jurisdictional attributes, see Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1559 (10th Cir.1992), modified on other grounds on reh’g, 995 F.2d 992, 994 (10th Cir.1993), it may be raised at any point, including for the first time on appeal. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 n. 8, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); see also V-1 Oil Co. v. Utah St. Dep’t of Pub. Safety, 131 F.3d 1415, 1419 (10th Cir.1997)(appellate court may raise and consider Eleventh Amendment immunity sua sponte). The Eleventh Amendment declares a policy and sets forth an explicit limitation on federal jurisdictional power of such compelling force that this Court will consider the issue arising under this amendment ... even though urged for the first time in this Court. Ford Motor Co. v. Dep’t of Treasury of Indiana, 323 U.S. 459, 467, 65 S.Ct. 347, 89 L.Ed. 389 (1945). If applicable, the Eleventh Amendment bars suits against states in federal court. V-1 Oil Co., 131 F.3d at 1420. A “Arm of the State” Only a state or “arms” of a state may assert the Eleventh Amendment as a defense to suit in federal court. Ambus, 995 F.2d at 994. Whether a particular political subdivision is an “arm of the state”" }, { "docid": "23029670", "title": "", "text": "be raised in the trial court” in order to be preserved for appeal. Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974); see also Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945). The Supreme Court has held, however, that the Eleventh Amendment defense is not “jurisdictional in the sense that it must be raised and decided by [the] Court on its own motion.” Patsy v. Florida Bd. of Regents, 457 U.S. 496, 516 n. 7, 102 S.Ct. 2557 n. 7, 73 L.Ed.2d 172 (1982). Instead, the Court has suggested that when an Eleventh Amendment question is not raised by the parties, the Court may determine whether to raise and decide the question based on what is “appropriate” in each particular ease. Id. See also Alessi v. Commonwealth of Pa. Dep’t of Pub. Welfare, 893 F.2d 1444, 1455 n. 5 (3d Cir.1990) (Becker, J., concurring and dissenting). In light of Patsy, we conclude that it is appropriate to reach the Eleventh Amendment issue in this case. In some cases in which an Eleventh Amendment issue is not raised in the district court, a lack of relevant evidence in the district court record might impede us from deciding the issue, but this problem is not present here. As discussed in Part II.F. of this opinion, the only factual question bearing on our Eleventh Amendment analysis in this case concerns the percentage of SEPTA’s funds provided by the Commonwealth and other sources. While these statistics are not in the record of this case, SEPTA provided these figures to the district court in Frazier v. SEPTA, Nos. 84-2950 & 84-3004, 1990 WL 82087 (E.D.Pa. June 11, 1987), a recent case in which SEPTA claimed that it was entitled to Eleventh Amendment protection. Both parties’ in banc briefs rely on these statistics; and although Bolden was not a party in Frazier, Bolden’s counsel stated during oral argument before the in banc court that he did not object to our relying upon those same facts. Consequently, it is appropriate for the" }, { "docid": "6206585", "title": "", "text": "Cir.1997). In short, the Eleventh Amendment’s ultimate guarantee is that nonconsenting states may not be sued by private individuals in federal court. See Garrett, 531 U.S. 356, 121 S.Ct. at 962, 148 L.Ed.2d 866; Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73, 120 S.Ct. 631, 640, 145 L.Ed.2d 522 (2000). Because the Eleventh Amendment represents a constitutional limitation on the federal judicial power established in Article III, see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906-07, 79 L.Ed.2d 67 (1984), federal courts lack jurisdiction to entertain claims that are barred by the Eleventh Amendment. See Vermont Agency of Natural Res. v. United States, 529 U.S. 765, 778, 120 S.Ct. 1858, 1865, 146 L.Ed.2d 836 (2000); Pennhurst, 465 U.S. at 98, 104 S.Ct. at 906 (The significance of the Eleventh Amendment “lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III.”) (internal marks and citation omitted). In accordance with the jurisdictional nature of the Eleventh Amendment’s limitation on judicial authority, the Supreme Court has held that the “Eleventh Amendment defense ... need not be raised in the trial court,” Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974), and may be raised for the first time by a state on appeal, see Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459, 467, 65 S.Ct. 347, 352, 89 L.Ed. 389 (1945). But the jurisdictional bar embodied in the Eleventh Amendment is a “rather peculiar kind of ‘jurisdictional’ issue.” United States v. SCS Bus. & Tech. Inst., Inc., 173 F.3d 890, 892 (D.C.Cir.1999). Unlike most subject matter jurisdiction issues, which cannot be waived by the parties and must be raised by a court on its own initiative, the Eleventh Amendment does not automatically deprive a court of original jurisdiction. Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047, 2052, 141 L.Ed.2d 364 (1998); see Calderon v. Ashmus, 523 U.S. 740, 745 n. 2, 118 S.Ct. 1694, 1697 n. 2, 140 L.Ed.2d 970 (1998)" }, { "docid": "31960", "title": "", "text": "one form of civil action. 2 Moore’s Federal Practice, ¶ 2.02[1] at 2-3 (1988). . See generally C. Wright, A. Miller & M. Kane, 10 Federal Practice and Procedure § 2668 (1983); 6 Moore’s Federal Practice ¶ 54.70(5] (1988). . The plaintiffs suggest the court should ignore this argument because the State defendants did not raise it before the district court. A reading of the record reveals that this issue was properly raised before the district court. See Record, Vol. 10, Tab 1770 at 12. Even if the state defendant had failed to raise this issue, we could consider it for the first time on appeal. It is well established that the Eleventh Amendment \"sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.\" Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974). \"The Eleventh Amendment declares a policy and sets forth an explicit limitation on federal judicial power of such compelling force that this [c]ourt will consider the issue arising under this Amendment ... even though urged for the first time in this [c]ourt.” Ford Motor Co. v. Dept. of Treasury of State of Indiana, 323 U.S. 459, 467, 65 S.Ct. 347, 352, 89 L.Ed. 389 (1945). .The Supreme Court’s recent Eleventh Amendment decisions, cited by the State defendants, do not support the proposition that the Constitution bars allowances of interest on litigation costs taxed against the States. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (Rehabilitation Act, 29 U.S. § 794, does not abrogate Eleventh Amendment immunity; State's receipt of federal funds does not amount to consent to suit in federal court); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (federal court cannot order State officials to conform conduct to State law); Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982) (Eleventh Amendment bars injunctive actions against the States)." }, { "docid": "2653586", "title": "", "text": "State of New York would be required to pay any damages awarded to Farid, and that the action is therefore barred by the eleventh amendment. In addition, Smith claims that the eleventh amendment bars Farid’s action for a declaratory judgment because Attica’s mailroom policy during the period at issue is no longer in effect. We are compelled to address these issues on appeal, even though Smith did not raise the eleventh amendment defense before the district court. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466-67, 65 S.Ct. 347, 351-52, 89 L.Ed. 389 (1945). A. The Damages Claim We consider first the effect of the eleventh amendment defense on the claim for damages. Absent a waiver on the part of the state, or a valid congressional override, the eleventh amendment prohibits federal courts from entertaining suits by pri vate parties against the states. Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985). The eleventh amendment also bars suits against state officials and state agencies if the state is the real party in interest, regardless of whether the state is named as a party to the action. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). Accordingly, when a state official is named as a party to a litigation, as here, the court must determine whether the action is in reality a suit against the state itself. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984) (“Pennhurst II”). When the state itself, rather than the state employee whose name appears in the caption, is the real party in interest, the suit is said to be brought against the employee in his “official capacity.” The eleventh amendment bars recovery against an employee who is sued in his official capacity, but does not protect him from personal liability if he is sued in his “individual” or “personal” capacity. Graham, 473 U.S. at 166-67, 105 S.Ct. at 3105-06. “Thus, while an award of damages against an" }, { "docid": "23378741", "title": "", "text": "651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), the Court stated that “the Eleventh Amendment defense ... partakes of the nature of a jurisdictional bar_” Id. at 678, 94 S.Ct. at 1363. As a “jurisdictional bar,” the eleventh amendment may be interposed as a defense at any juncture, even on appeal when not raised in the trial court. See id.; but cf. Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 516 n. 19, 102 S.Ct. 2557, 2567 n. 19, 73 L.Ed.2d 172 (1982) (“[W]e have never held that [the eleventh amendment] is jurisdictional in the sense that it must be raised and decided by this Court on its own motion.”). However, the Court later commented that the eleventh amendment’s “significance lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Article] III.” Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984) (Pennhurst II). Significantly, the Court in Pennhurst II noted that “[a] sovereign’s immunity may be waived, and the Court consistently has held that a State may consent to suit against it in federal court.” Id. at 99, 104 S.Ct. at 907; see also Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). Nevertheless, the Pennhurst II Court’s decision ultimately conceptualized the eleventh amendment as erecting an insurmountable (albeit waivable) jurisdictional bar in holding that “neither pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment.” Pennhurst II, 465 U.S. at 121, 104 S.Ct. at 919 (footnote omitted); see also County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 251, 105 S.Ct. 1245, 1260, 84 L.Ed.2d 169 (1985). This view of the eleventh amendment as jurisdictional yet waivable has prevailed in recent Supreme Court decisions, see, e.g., Atascadero State Hosp., 473 U.S. at 241, 105 S.Ct. at 3146 (eleventh amendment analysis involves “determining whether a State has waived its immunity from federal-court jurisdiction”), and decisions of this court. See, e.g., Allinder v. State of Ohio," }, { "docid": "18027532", "title": "", "text": ". Doc. nos. 10, 13-16, and 48-51. . Doc. no. 82. . Doc. no. 92. . Doc. no. 104. . Doc. no. 115. . Doc. no. 119. . Doc. no. 122. . Doc. no. 129. . Doc. no. 132. . Doc. no. 176. .Doc. no. 182. . Doc. no. 243. . Doc. no. 260. . Doc. no. 270. . Doc. no. 321. . Doc. no. 339. . Doc. no. 339. . Doc. no. 381. . 1994 WL 899259 (M.D.Ala.1994); Doc. no. 553. . Doc. no. 726. . Doc. no. 1785. . Doc. no. 1760. . Doc. nos. 688-694. . Doc. no. 734. . Doc. no. 773. . Doc. no. 988. . Doc. no. 1003. . Doc. no. 1036. . Doc. no. 1212. . Doc. no. 1333. . Doc. no. 1419. . Doc. no. 1447. . Doc. no. 1707. . Doc. no. 1777. . Doc. no. 1874. .Doc. no. 1879. . Doc. no. 1880. . Order dated Doc. no. 1961. . Doc. no. 2063. . Doc. no. 2066. . Doc. no. 2063. . Doc. no. 2071. . Doc. no. 2072. . Doc. no. 2070. . Eleventh-amendment immunity does \"partake of the nature” of a jurisdictional bar in the sense that it can be raised at any time by defendant, Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974), and, if raised properly raised, can even deprive a court of the authority to hear an issue. Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984). But it differs from jurisdiction in the sense that it is still an affirmative defense which must be raised by the defendant and thus can be waived. In other words, unlike jurisdiction, it can be waived and a court cannot on its own raise the defense. Patsy v. Board of Regents of the State of Fla., 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 2567 n. 19, 73 L.Ed.2d 172 (1982) (”[B]ecause of the importance of State law in analyzing Eleventh Amendment questions and because the State may, under certain circumstances," }, { "docid": "23029669", "title": "", "text": "is an alter ego of the Commonwealth of Pennsylvania for Eleventh Amendment purposes and that it therefore may not be sued in federal court without its consent. SEPTA also argues that, because it is not subject to suit in federal court by virtue of the Eleventh Amendment, it is also not a “person” within the meaning of 42 U.S.C. § 1983. Before addressing the merits of this Eleventh Amendment argument, we must consider whether we should reach this issue, since it was never raised by SEPTA at any time prior to the oral argument before the panel. We do not generally consider issues not raised by the parties (see Frank v. Colt Indus., Inc., 910 F.2d 90, 100 (3d Cir.1990)), but we are always obligated to ensure that wé have jurisdiction over the cases that come before us. Mansfield, Coldwater & Lake Michigan R.R. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884). “[T]he Eleventh Amendment sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court” in order to be preserved for appeal. Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974); see also Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945). The Supreme Court has held, however, that the Eleventh Amendment defense is not “jurisdictional in the sense that it must be raised and decided by [the] Court on its own motion.” Patsy v. Florida Bd. of Regents, 457 U.S. 496, 516 n. 7, 102 S.Ct. 2557 n. 7, 73 L.Ed.2d 172 (1982). Instead, the Court has suggested that when an Eleventh Amendment question is not raised by the parties, the Court may determine whether to raise and decide the question based on what is “appropriate” in each particular ease. Id. See also Alessi v. Commonwealth of Pa. Dep’t of Pub. Welfare, 893 F.2d 1444, 1455 n. 5 (3d Cir.1990) (Becker, J., concurring and dissenting). In light of Patsy, we conclude that it is appropriate to reach the Eleventh" }, { "docid": "23378740", "title": "", "text": "97 S.Ct. 568, 572-73, 50 L.Ed.2d 471 (1977), the Court has observed that “some agencies exercising state power have been permitted to invoke the [Eleventh] Amendment in order to protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself.” Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 400-01, 99 S.Ct. 1171, 1176-77, 59 L.Ed.2d 401 (1979) (footnote omitted); accord Estate of Ritter v. University of Michigan, 851 F.2d 846, 850-51 (6th Cir.1988). Likewise, “[r]elief that in essence serves to compensate a party injured in the past by an action of a state official in his official capacity that was illegal under federal law is barred even when the state official is the named defendant.” Papasan, 478 U.S. at 278, 106 S.Ct. at 2940. While the reach of the eleventh amendment has thus essentially been settled by the Supreme Court, the nature of the amendment has been the subject of seemingly inconsistent Court pronouncements. In Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), the Court stated that “the Eleventh Amendment defense ... partakes of the nature of a jurisdictional bar_” Id. at 678, 94 S.Ct. at 1363. As a “jurisdictional bar,” the eleventh amendment may be interposed as a defense at any juncture, even on appeal when not raised in the trial court. See id.; but cf. Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 516 n. 19, 102 S.Ct. 2557, 2567 n. 19, 73 L.Ed.2d 172 (1982) (“[W]e have never held that [the eleventh amendment] is jurisdictional in the sense that it must be raised and decided by this Court on its own motion.”). However, the Court later commented that the eleventh amendment’s “significance lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Article] III.” Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984) (Pennhurst II). Significantly, the Court in Pennhurst II noted that “[a]" }, { "docid": "22793525", "title": "", "text": "authority in Art. III.” Pennhurst, 465 U.S. at 98, 104 S.Ct. 900; see Close, 125 F.3d at 39. Eleventh Amendment immunity is not absolute, however. To the contrary, a state may be divested of immunity and haled into federal court in one of two ways: (1) Congress may abrogate the sovereign immunity through a statutory enactment, Close, 125 F.3d at 36 (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)), or (2) a state may waive its immunity and agree to be sued in federal court, see id. (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). Richardson draws our attention to the second method, arguing that New York waived its Eleventh Amendment immunity when DOCS failed to raise the issue in its answer. “The test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one.” Atascadero, 473 U.S. at 241, 105 S.Ct. 3142. Accordingly, waiver is found only where stated “by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.” Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (citation and alteration omitted); Close, 125 F.3d at 39. As explained below, DOCS’s failure to raise the defense in its answer does not constitute such an unambiguous waiver. In Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 467-68, 65 S.Ct. 347, 89 L.Ed. 389 (1944), the Supreme Court held that the Eleventh Amendment “declares a policy and sets forth an explicit limitation on federal judicial power of such compelling force” that the issue could be raised for the first time in the Supreme Court. Some thirty years later, in Edel-man, the Supreme Court held that the Eleventh Amendment defense “sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.” 415 U.S. at 677-78, 94 S.Ct. 1347. Indeed, following this reasoning we have viewed the amendment as affecting our subject" }, { "docid": "22340700", "title": "", "text": "jurisdiction applies (subject to certain exceptions discussed below) not only when the plaintiff seeks to recover under federal law, see Papasan v. Allain, — U.S. —, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), but also when he seeks to vindicate a right having its genesis in state law, see Pennhurst, 465 U.S. at 117, 104 S.Ct. at 917. The instant case presents several questions relating to the Eleventh Amendment. One was addressed by the lower court. The others were not, presumably because of the manner in which that court ruled on the 12(b)(6) motion and because of the defendants’ sketchy presentation of these issues below. Nonetheless, because the Eleventh Amendment defense “partakes of the nature of a jurisdictional bar,” Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974), we will consider its applicability in the instant case, even though the district court did not. See id.; see also Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (Eleventh Amendment defense considered even though not raised in district court); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466-67, 65 S.Ct. 347, 352, 89 L.Ed. 389 (1945) (Eleventh Amendment defense considered even though raised for first time in Supreme Court). a. State Law Violations The defendants maintain that the interpretation of the Eleventh Amendment set forth in the Supreme Court’s recent decision in Pennhurst, supra, bars the plaintiffs’ action. We, however, must affirm the district court's conclusion that Pennhurst does not foreclose this lawsuit, for the simple reason that the plaintiffs are not seeking to vindicate rights based on state law. They alleged only that the defendants failed to discharge the duties imposed by federal law under the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and § 204(f) of the EEOA. As we understand the complaint, the plaintiffs have no quarrel with Illinois’s Transitional Bilingual Education Act. Thus, the plaintiffs’ position is not that they could hold the defendants liable under Illinois law," }, { "docid": "15486286", "title": "", "text": "common law claim for indemnification in the nature of setoff and re-coupment, which can be satisfied out of future distributions of settlement proceeds to New Mexico. I. Eleventh Amendment 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, amend. XI. The United States Supreme Court has consistently held that this amendment bars not only suits brought in federal court by citizens of other states, but also suits brought by the state’s own citizens. Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). In the absence of consent, a suit in which a state or one of its agencies or departments is named as defendant is barred by the Eleventh Amendment. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984). The Eleventh Amendment defense may be raised at any time, id. at 99 n. 8, 104 S.Ct. at 907 n. 8; Edelman, 415 U.S. at 678, 94 S.Ct. at 1363, and applies regardless of the nature of the relief sought. Pennhurst, 465 U.S. at 100, 104 S.Ct. at 907; see also Missouri v. Fiske, 290 U.S. 18, 27, 54 S.Ct. 18, 21, 78 L.Ed. 145 (1933). A suit against state officials for retroactive monetary relief, whether based on federal or state law, must be brought in state court. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). A state may waive its immunity and consent to suit in federal court. The state’s consent must, however, be unequivocally expressed. Pennhurst, 465 U.S. at 99, 104 S.Ct. at 907. As the Supreme Court stated in Edelman, a waiver of Eleventh Amendment immunity will be found only when stated “by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.” Edelman," }, { "docid": "7595379", "title": "", "text": "standard of proof. They also argue, for the first time on appeal, that they are immune from suit under the eleventh amendment. I. ELEVENTH AMENDMENT Initially, the issues raised on appeal and addressed in the parties’ briefs were limited to the trial court’s handling of the first amendment, due process, and defamation claims. Shortly after the briefs were filed, the school board members submitted a letter to this court asserting that the school district and board members in their official capacities enjoy eleventh amendment immunity. The eleventh amendment claim was addressed at oral argument although not yet fully briefed. Three sub-issues are important: (1) whether the issue was timely raised; (2) whether the board members are estopped from raising the issue; and (3) if the issue is properly before the court and estoppel does not apply, whether the school board is in fact entitled to immunity. A. Was the Eleventh Amendment Defense Timely Raised? The board members raised the eleventh amendment as a defense in their Answer, First and Second Amended Answers, and in the Pre-Trial Order. Apparently, however, they did not pursue the defense, and the trial judge failed to rule on it. An eleventh amendment defense is jurisdictional and may be raised for the first time on appeal. Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 1362-63, 39 L.Ed.2d 662 (1974) (citing Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466-67, 65 S.Ct. 347, 351-52, 89 L.Ed. 389 (1945)). Further, it may be argued on appeal even if it was raised but abandoned at the trial level. See Sosna v. Iowa, 419 U.S. 393, 396 n. 2, 95 S.Ct. 553, 555 n. 2, 42 L.Ed.2d 532 (1975). The plaintiff argues that Patsy v. Board of Regents, 457 U.S. 496,102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), retreated from the broad holdings of Edelman and Ford Motor. However, since Patsy, the Supreme Court has reaffirmed that an eleventh amendment defense may be raised at any time in the proceedings. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 99 n. 8, 104 S.Ct. 900, 907" }, { "docid": "18027533", "title": "", "text": ". Doc. no. 2072. . Doc. no. 2070. . Eleventh-amendment immunity does \"partake of the nature” of a jurisdictional bar in the sense that it can be raised at any time by defendant, Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974), and, if raised properly raised, can even deprive a court of the authority to hear an issue. Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984). But it differs from jurisdiction in the sense that it is still an affirmative defense which must be raised by the defendant and thus can be waived. In other words, unlike jurisdiction, it can be waived and a court cannot on its own raise the defense. Patsy v. Board of Regents of the State of Fla., 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 2567 n. 19, 73 L.Ed.2d 172 (1982) (”[B]ecause of the importance of State law in analyzing Eleventh Amendment questions and because the State may, under certain circumstances, waive this defense, we have never held that [eleventh amendment immunity] is jurisdictional in the sense that it must be raised and decided by this Court on its own motion.”) . The First Circuit also noted that its decision “does not imply, however, that the defense has been waived for other stages of the litigation. Because the defense of qualified immunity may be raised and appealed at multiple stages of the trial, it would be inappropriate to find waiver for all stages in the current case.” 98 F.3d at 669. In a similar vein here, this court only holds that defendants have waived trial immunity for the upcoming resumption of trial; the court does not have before it and, thus, does not address whether they have waived trial immunity as to any other proceeding. . The court must candidly admit that, with its current heavy docket, it could take up other matters during this period in the absence of the trial. . Defendants imply that a change in the law has warranted the delay on" }, { "docid": "22325357", "title": "", "text": "think it difficult to imagine that the Supreme Court would uphold a ruling that Title VII in fact preempts the remedy available for a violation of the fourteenth amendment for intentional employment discrimination provided by § 1983. IV. On appeal, defendants raise for the first time the defense that retroactive relief under § 1983 is barred by the eleventh amendment. To accept this defense would limit the plaintiff’s remedies to equitable relief under § 1983, relief to which the district judge has already ruled that the plaintiff is not entitled and for which no right to a jury trial is available. The defense of sovereign immunity, grounded in the eleventh amendment, is sufficiently analogous to a jurisdictional bar that it may generally be raised at any stage of the proceedings. Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 1362-63, 39 L.Ed.2d 662 (1974); Faust v. South Carolina State Highway Dept., 721 F.2d 934, 940 (4 Cir.1983), cert. denied, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984). We are reluctant, however, to address this issue for the first time on appeal where, as here, it involves a difficult question of state law and factual proof that was not developed in the district court. An unconsenting state enjoys eleventh amendment protection against a § 1983 suit for damages. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Edelman v. Jordan, supra. On the other hand, a municipality or other local government unit does not enjoy the protection of the eleventh amendment and may be sued under § 1983 for constitutional deprivations. Lake County Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979); Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Application of the eleventh amendment in this case thus depends on whether the Prince George’s County Department of Social Services is an arm of the State. No" }, { "docid": "22793526", "title": "", "text": "language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.” Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (citation and alteration omitted); Close, 125 F.3d at 39. As explained below, DOCS’s failure to raise the defense in its answer does not constitute such an unambiguous waiver. In Ford Motor Co. v. Department of the Treasury, 323 U.S. 459, 467-68, 65 S.Ct. 347, 89 L.Ed. 389 (1944), the Supreme Court held that the Eleventh Amendment “declares a policy and sets forth an explicit limitation on federal judicial power of such compelling force” that the issue could be raised for the first time in the Supreme Court. Some thirty years later, in Edel-man, the Supreme Court held that the Eleventh Amendment defense “sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.” 415 U.S. at 677-78, 94 S.Ct. 1347. Indeed, following this reasoning we have viewed the amendment as affecting our subject matter jurisdiction and raised the issue sua sponte to dismiss claims against New York State. Atlantic Healthcare Benefits Trust v. Googins, 2 F.3d 1, 4 (2d Cir.1993). Despite the decidedly jurisdictional character of the Eleventh Amendment, Richardson argues that DOCS’s failure to raise the issue in its answer constitutes a waiver. Richardson is correct that some cases have characterized the Eleventh Amendment as presenting something less than a pure jurisdictional bar. As an initial matter, unlike a true jurisdictional bar, the defense may be waived. See Atascadero, 473 U.S. at 241, 105 S.Ct. 3142. Additionally, the Supreme Court has suggested that it is not obligated to raise the issue on its own motion. See Patsy v. Board of Regents, 457 U.S. 496, 516 n. 19, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1981) (reflecting that the Eleventh Amendment was not jurisdictional in the sense “that it must be raised and decided by this Court on its own motion,” and choosing not to rule on immunity grounds, but leaving the state free to raise the defense on" }, { "docid": "1074495", "title": "", "text": "were dismissed. Based on the foregoing facts, Della Grot-ta brought an action against Officer Coons and the State of Rhode Island pursuant to 42 U.S.C. § 1983, alleging violation of his constitutional rights to be free from false arrest, false imprisonment, false charges, and illegal searches. The case was tried before a jury for two-and-a-half days. At the close of all the evidence, neither defendant moved for a directed verdict. The jury returned a verdict of $10,000 in compensatory damages and $2,000 in punitive damages against Officer Coons, and $14,-000 in compensatory damages against the State of Rhode Island. Defendants’ motions for judgment notwithstanding the verdict or for a new trial were denied. The State alone now appeals to this court. II. WAIVER OF ELEVENTH AMENDMENT IMMUNITY Rhode Island argues that the eleventh amendment prevents its being sued. Although not raised below, this contention can be pursued here since the eleventh amendment is a jurisdictional bar to suits against states and may be raised on appeal for the first time. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984); Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974); Ford Motor Company v. Department of Treasury, 323 U.S. 459, 466-67, 65 S.Ct. 347, 351-52, 89 L.Ed. 389 (1945). But see Atascadero State Hospital v. Scanlon, 473 U.S. -, -, 105 S.Ct. 3142, 3150-52, 87 L.Ed.2d 171 (1985) (Brennan, J., dissenting). The eleventh amendment would normally be an absolute defense for Rhode Island to this action. However, appellee insists that Rhode Island has waived its eleventh amendment immunity. Although the circumstances are peculiar, we agree. It is well settled that just as a state may waive its sovereign immunity to suit in its own courts, it may waive its eleventh amendment immunity to suit in the federal courts. Atascadero, 473 U.S. at -, 105 S.Ct. at 3144-45; Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 883, 27 L.Ed. 780 (1883). A state’s waiver of sovereign immunity in its own courts does not necessarily" }, { "docid": "6206586", "title": "", "text": "on judicial authority, the Supreme Court has held that the “Eleventh Amendment defense ... need not be raised in the trial court,” Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974), and may be raised for the first time by a state on appeal, see Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459, 467, 65 S.Ct. 347, 352, 89 L.Ed. 389 (1945). But the jurisdictional bar embodied in the Eleventh Amendment is a “rather peculiar kind of ‘jurisdictional’ issue.” United States v. SCS Bus. & Tech. Inst., Inc., 173 F.3d 890, 892 (D.C.Cir.1999). Unlike most subject matter jurisdiction issues, which cannot be waived by the parties and must be raised by a court on its own initiative, the Eleventh Amendment does not automatically deprive a court of original jurisdiction. Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047, 2052, 141 L.Ed.2d 364 (1998); see Calderon v. Ashmus, 523 U.S. 740, 745 n. 2, 118 S.Ct. 1694, 1697 n. 2, 140 L.Ed.2d 970 (1998) (“While the Eleventh Amendment is jurisdictional in the sense that it is a limitation on the federal court’s judicial power, ... we have recognized that it is not coextensive with the limitations on judicial power in Article III.”). “Rather,” the Supreme Court has explained, “the Eleventh Amendment grants the State a legal power to assert a sovereign immunity defense should it choose to do so.” Schacht, 524 U.S. at 389, 118 S.Ct. at 2052. This understanding of the Eleventh Amendment as a volitional defense is manifest in decisions allowing it to be waived by the state, see, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 3146-47, 87 L.Ed.2d 171 (1985), or ignored by the court if not raised, see, e.g., Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 2567, n. 19, 73 L.Ed.2d 172 (1982). Thus, unlike other jurisdictional bars, federal courts are required to consider whether the Eleventh Amendment strips them of jurisdiction only if the state defendant insists that it" } ]

[ { "docid": "2576802", "title": "", "text": "C. A.) 50 F.(2d) 599; Perry v. Wiggins, 57 F.(2d) 622 (C. C. A. 8).\" A so-called bill of exceptions is included in the record in this case which contains the following o'~'er the signature of the trial judge: \"And now comes the defendant Desha County, Arkansas, by its attorney, E. W. Brockman, Prosecuting Attorney, and, presents to the Court this its bill of exceptions and asks that the same be approved and made a part of the record in this case, which is accordingly done this 5th day of October, 1933.\" It will be noted, that it is not stated that the bill of exceptions contains all of the evideuce heard, on the trial of the ease. The judgment entry of the court recites that the cause was heard upon the pleadings, upon the oral testimony of certain named witnesses, and upon \"the written stipulation anent facts executed and filed b~ the parties.\" The so-called bill of exceptions does not contain any stipulation of facts; It is evident to us, therefore, that the trial court did not and did not intend, to certify that the so-called bill of exceptions contained all of the evidence upon which the case was decided. In law actions this court has no jurisdiction to review the evidence upon which findings have been made and judgment entered by the trial court without a duly authenticated bill of exceptions containing all of the evidence upon which the judgment was rendered. Southern Surety Co. v. United States, 23 F.(2d) 55, 58 (C. C. A. 8); Morrison v. Regus (C. C. A.) 22 F.(2d) 804; Pistillo v. United States, 26 F.(2d) 202 (C. C. A. 8); Flanagan v. Benson, 37 F.(2d) 69 (C. C. A. 8); Kendrick Coal & Dock Co. v. Commissioner, 29 F.(2d) 559, 563 (C. C. A. 8); McHale v. Hull (C. C. A.) 16 F.(2d) 781; Snead. v. Little Cahaba Coal Co. (C. C. A.) 53 F.(2d) 560; Lesser Cotton Co. v. St. L., I. M. & S. R. Co. (C. C. A.) 114 F. 133; Bolen-Darnall Co. v. Hicks, 190 F. 717 (C." } ]

[ { "docid": "13282481", "title": "", "text": "facts, the act of Congress forbids a reversal by the appellate court of that finding, or the judgment thereon, ‘for any error of fact’ [citing statute], and a finding of fact contrary to the weight of the evidence is an error of fact. “The question of law whether or not there-was any substantial evidence to sustain any such finding is reviewable, as in a trial by jury, only when a request or a motion is-made, denied, and excepted to, or some other-like action is taken which fairly presents that question to the trial court and secures its ruling thereon during the trial.” In Federal Surety Co. v. Standard Oil Co., 32 F.(2d) 119, we held that: “Where-jury was waived by written stipulation and no request for special or general declarations-of law was made, there can be no review of’ the general finding of fact or of the conclusions of law.” In Inter-Southern Life Ins. Co. v. Klaber(C. C. A. 8) 50 F.(2d) 154, the holding was that review in a cause in which a jury was waived is limited, in absence of a request for findings of fact and conclusions of law, to- questions arising on the pleadings. See, also, Pennok Oil Co. v. Roxana Petroleum Co. (C. C. A. 8) 289 F. 416, 418; McFarland v. Central National Bank (C. C. A. 8) 26 F.(2d) 890; Buechle v. Montgomery (C. C. A. 8) 45 F.(2d) 987; United States v. Perry (C. C. A. 8) 55 F.(2d) 819; Wourdack v. Becker (C. C. A. 8) 55 F.(2d) 840. It is to be remembered that, on April 28, 1931, the court, sitting as a jury, made findings of fact and entered judgment generally for appellees upon the submission then made. Three months later, at whose instance, and for what reason, does not appear, the court made a nnnc pro tune order, as of April 28, 1931, sustaining appellees’ motion for judgment, and allowing an exception to appellant. No further action, in the way of request for findings and conclusions or otherwise, was taken by appellant. Because of this later action by" }, { "docid": "13381388", "title": "", "text": "23 F.(2d) 55; Denver Live Stock Commission Co. v. Lee (C. C. A.) 18 F.(2d) 11; Highway Trailer Co. v. City of Des Moines, Iowa (C. C. A.) 298 F. 71; Wear v. Imperial Window Glass Co. (C. C. A.) 224 F. 60. However, because of the action of the trial court, in apparent recognition of the stipulation of counsel to hold the final disposition of the case open until December 31, 1932, to enable appellant to take such steps as might be deemed necessary to preserve its record on appeal, we do not feel justified in denying to it such review as may otherwise be permissible. Of course, no error can be assigned to the refusal of the court, sitting as a jury, to make the fact findings requested. St. Louis v. Rutz, 138 U. S. 228, 11 S. Ct. 337, 34 L. Ed. 941; Southern Surety Co. v. United States (C. C. A. 8) 23 F.(2d) 55. There is open to review in such case only the questions of whether the findings support the judgment entered, or whether there is substantial evidence to support the findings. And the latter question is open only when “a request or a motion is made, denied, and excepted to, or some other like action is taken which fairly presents that question to the trial court and secures its ruling thereon.” Wear v. Imperial Window Glass Co. (C. C. A. 8) 224 F. 60, 63; Fleisehmann Construction Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624. This question is presented by appellant’s motion for judgment on the ground that: “There' is no substantial evidence and no evidence whatsoever to sustain a finding or judgment in favor of the defendants and against the plaintiff.” Whether there is substantial evidence to support the findings makes necessary a consideration of what may constitute intrastate business within the meaning of the South Dakota Statutes invoked. Merely soliciting orders for goods to be shipped in the course of interstate commerce does not constitute doing business in the state to which the" }, { "docid": "6608088", "title": "", "text": "causes, I inquire what should have been said and why should anything have been said on that subject? We have no evidence that any such causes intervened to disturb the causal relation between the fires which were started and the destruction of the insured property. In the Tweed Case the court said that the mere accidental circumstance that the wind was blowing in a direction to favor the progress of the fire toward the insured warehouse could not be considered a new cause. There is no suggestion anywhere in the record in this case that there was back-firing or dynamiting or that there was a wind. There was no request for an instruction on those subjects, nor was any specific exception taken to the charge for want of such instruction. None of the evidence in the case is before us. In the bill of exceptions it is recited as follows: “Evidence was then introduced by defendant which was sufficient to justify the verdict in every aspect of the instructions given by the court as herein set forth, and such instructions were in all respects pertinent to the evidence.” When instructions to a jury are challenged in an appellate court, that court is bound to assume, in the absence of evidence to the contrary, that the charge was appropriate to the testimony in the case. This court has so held in accord with the general rule. Yates v. United States, 90 Fed. 57, 32 C. C. A. 507; Southern Pacific Co. v. Arnett, 111 Fed. 849, 50 C. C. A. 17. In Carpenter v. Ewing, 76 Cal. 488, 18 Pac. 432, the Supreme Court of California held that where none of the evidence is brought up in the record, and there is nothing to show its purport or tendency, it will be presumed that it was such as to justify the instructions. The court said: “The settled rule Is that, where the record contains no part of the evidence, the judgment will not be disturbed on account of instructions alleged to be erroneous, unless it appears that such instructions would have" }, { "docid": "12174089", "title": "", "text": "DIETRICH, District Judge. Defendants were convicted on two counts; one charging conspiracy to violate the National Prohibition Act (Comp. St. § 10138¼ et seq.), and one for. the manufacture of intoxicating liquor. The first assignment is that the court erred in declining to order a bill of particulars. Generally this is a matter within the sound discretion of the trial court, and, while some of the data asked for might very properly have been ordered, we cannot say that the action of the court amounted to an abuse of discretion. It is next contended that there was error in overruling defendant Welch’s motion to suppress evidence. There is no reference in the bill of exceptions to a motion to suppress or to any showing made in support thereof. There are in the printed transcript what purport to be such a motion, a supporting affidavit, and an order overruling the motion, but there is no identification in the order, or otherwise, of the record upon which it is based; nor does it appear that any exception was taken. Not infrequently the showing in such cases is made by both affidavit and oral testimony; and either by formal bill of exceptions or in some other manner the record upon which the court acted must be authenticated or we cannot consider it. If we take the certificate to the bill of exceptions literally, it would exclude consideration of anything not embraced therein, for it states that the bill “contains all- material facts, matters, things, evidence, and exceptions thereto material to each and every assignment of error made by the defendants,” one of which is the assignment in question. If we were to take cognizance of the warrant and affidavit set forth in the transcript, it would be sufficient to say that they measure up to the rule of Giacolone v. U. S. (C. C. A.) 13 F.(2d) 108. The principal point urged by the defendant is that the place searched was his home, but, if we resort to the facts disclosed in. the bill of exceptions, it would appear to have been a" }, { "docid": "21346239", "title": "", "text": "requested by defendants. There was no motion for judgment nor for a declaration of law that defendants were entitled to judgment. The approval of the bill of exceptions is in the following form: “The foregoing bill of exceptions is approved and allowed this July 18, 1934.” The court was not' required to make special findings of fact in this law action, and hence a denial of request for such special findings was not error. As has been observed, no error is assigned to the refusal of the court to make the declarations of law requested, and we think they are not of such character as would entitle. appellants to a review of the evidence because they do not embody a declaration that defendants were entitled to judgment. The general findings of the lower court cannot be reviewed because the certificate settling the bill of exceptions does not recite that it contains all the material evidence, nor does the bill of exceptions itself contain any recitals showing'that it does contain all the evidence material to the issues sought to be reviewed. United States Mutual Acc. Ass’n v. Robinson (C. C. A. 8) 74 F. 10; Desha County v. Crocker First Nat. Bank (C. C. A. 8) 72 F.(2d) 359; Kendrick Coal, etc., Co. v. Commissioner (C. C. A. 8) 29 F.(2d) 559; Southern Surety Co. v. United States (C. C. A. 8) 23 F.(2d) 55, 58; Chicago Great Western R. Co. v. LeValley (C. C. A. 8) 233 F. 384; McCuing v. Bovay (C. C. A. 8) 60 F.(2d) 375. In Southern Surety Co. v. United States, supra, we said: “ * * * The findings of the court below raise the legal presumption that there was competent and relevant evidence in support of them,- in the absence of a certificate by the trial judge that the bill of exceptions contains all the evidence, or-all the evidence on the particular issues, the findings concerning which are questioned. * * * ” As there was no motion for judgment at the .close of’the evidence and no request for a binding declaration of" }, { "docid": "21346241", "title": "", "text": "law, the evidence cannot be reviewed on appeal. But, even if it could be said that the denial of the requested declarations of law was sufficient to entitle appellants to a review of the evidence, still it is again observed that there is no assignment of error based upon this ruling of the court, and, last of all, the certificate settling the bill does not recite that- the bill contains all the evidence material to the issues sought to be presented. As the judgment is supported by the primary record, and we are powerless to review the evidence, it must be sustained. Brown Sheet Iron & Steel Co. v. Maple Leaf Oil & Refining Co. (C. C. A. 8) 68 F.(2d) 787; Nolan v. United States (C. C. A. 8) 75 F.(2d) 65. In this connection, it should perhaps be observed that there seems to be a growing laxity in the matter of the allowance and certification of bills of exception. The statute, 28 USCA § 776, requires that the trial judge allow and sign the bill of exceptions. The settlement of a bill of exceptions is not a ministerial act, but a judicial act. Baldwin et al. v. Myers (C. C. A. 8) 75 F.(2d) 529, and cases there cited. The function of the bill of exceptions is to make that of record which is otherwise not of record, and its authenticity in this court is dependent entirely upon the certificate or order of the trial judge. It is essential that the record affirmatively show that this court has before it an accurate account of the evidence before the lower court hearing the issues of the case, together with the objections interposed, the rulings of the court thereon, and the exceptions, if any, thereto. While no particular form is insisted upon, we take this occasion to suggest that the trial judge’s certificate should leave no doubt as to the accuracy, character, and content of the record certified, and should be in substantially the following form (Sec. 170, Simkins Fed. Pr.): “I, the undersigned United States District Judge, who presided" }, { "docid": "15289016", "title": "", "text": "other rulings on questions of law made by the court during the progress of the trial are properly a part of the trial proceedings and should be presented to the appellate court by proper bill of exceptions. White v. United States, supra; Merriam v. Huselton (C. C. A. 8) 45 F.(2d) 983, 985, 986; Federal Intermediate Credit Bank v. L’Herisson (C. C. A. 8) 33 F.(2d) 841, 843; Ana Maria Sugar Co. v. Quinones (C. C. A. 1) 251 F. 499, 504. A request for a declaration of law not presented until after the close of the trial comes too late. Southern Surety Co. v. United States (C. C. A. 8) 23 F.(2d) 55, 59; Merriam v. Huselton, supra, page 985 of 45 F.(2d). Assuming, without deciding, that the purported request for a declaration of law amounted to a motion for judgment in favor of plaintiff, or for a declaration of law that plaintiff was entitled to judgment upon all the evidence, we cannot consider it because it is not included in the bill of exceptions- and was not timely presented. Counsel for plaintiff urge that, because the rulings on the demurrers were favorable-to plaintiff, he had the right to assume that the general finding and judgment would be in his favor, and for that reason was excused from moving for judgment in his favor or asking for a declaration of law that he was entitled to judgment. We cannot agree with this contention. Defendant had challenged the sufficiency of the petition and plaintiff’s evidence. Notwithstanding the preliminary rulings, it was open to the court, in the final disposition of the cause, to find for the defendant. If. plaintiff desired to preserve his right to review, in the event of an adverse ruling in such final disposition, he should have moved for judgment in his favor or asked for a declaration of law that he, was entitled to judgment upon the evidence as a matter of law, and invoked the court’s ruling thereon and brought such rulings here for review upon a proper bill of exceptions. The assignments of error," }, { "docid": "13282480", "title": "", "text": "to support the judgment.” Title 28, USCA § 875. This court has had occasion to pass upon this precise question in many decided cases. Perhaps .the leading ease in this circuit is Barnard v. Randle, 110 F. 906, 909. In that case the jury was waived, and no special finding of facts was made. It was there held that “the only questions arising on the evidence which can be presented to or considered by this court are the rulings upon the admission or rejection of evidence in the progress of the trial, and, in eases where that question is presented by a proper request at the close of all the evidence, the sufficiency of the evidence to warrant the finding.” In Wear v. Imperial Window Glass Company (C. C. A. 8) 224 F. 60, 63, Judge Walter H. Sanborn, again speaking for this court,, announced the; rule still more \"comprehensively: “When an action at law is tried without, a jury by a federal court, and it makes a general finding, or a special finding of facts, the act of Congress forbids a reversal by the appellate court of that finding, or the judgment thereon, ‘for any error of fact’ [citing statute], and a finding of fact contrary to the weight of the evidence is an error of fact. “The question of law whether or not there-was any substantial evidence to sustain any such finding is reviewable, as in a trial by jury, only when a request or a motion is-made, denied, and excepted to, or some other-like action is taken which fairly presents that question to the trial court and secures its ruling thereon during the trial.” In Federal Surety Co. v. Standard Oil Co., 32 F.(2d) 119, we held that: “Where-jury was waived by written stipulation and no request for special or general declarations-of law was made, there can be no review of’ the general finding of fact or of the conclusions of law.” In Inter-Southern Life Ins. Co. v. Klaber(C. C. A. 8) 50 F.(2d) 154, the holding was that review in a cause in which a jury" }, { "docid": "16046511", "title": "", "text": "and marked, “Rejected, with permission to present later,” a petition regarding evidence and the recital of the court granting the prayer of the petition, copies of all of which appeared in the transcript, formed no part of the record which could be considered by the appellate court, in the absence of a bill of exceptions containing them, allowed, and authorized by the judge. In Chicago Great Western R. Co. v. Le Valley, 233 F. 384, 387, this court said: “It is a familiar and an established rule of practice of the federal courts that in actions at law a bill of exceptions', stating the ruling and the exception, settled and signed by the trial judge, is indispensable to the review of rulings upon motions, oral or written, to strike out parts of pleadings, rulings upon motions based on affidavits or evidence and rulings on written or oral requests for instructions to the jury founded upon evidence. * * * And neither the filing of a written motion founded on evidence, nor the recital by the clerk in his record of the proceedings of the trial of a case of such a motion, or of an exception to a ruling upon it, makes them a part of the record in the ease, so that an appellate court may review the ruling. * * * In Hildreth v. Grandin [C. C. A.] 97 F. 870, 872, where an attempt was made to review an order on a motion founded on an affidavit and a judgment, this court declared that: ‘When a motion is presented to a trial court which presents issues of fact for determination by that court on evidence adduced by the respective parties, the action of the trial court cannot be reviewed on a writ of error, unless a proper bill of exceptions, embodying the motion and the proofs, is duly settled, signed, and filed, so as to show to this court, in an authentic form, on what state of facts the action of the trial court was - predicated.’ ” See Pauchet v. Bujac (C. C. A.) 281 F." }, { "docid": "13381387", "title": "", "text": "for Judgment in this action were actually entered.” December 31, 1932, pursuant to stipulation, and, presumably with an understanding ' between court and counsel, appellant filed its proposed findings of fact and requested declarations of law, which were by the court overruled with exceptions allowed. The court thereupon filed its findings of fact and conclusions of law and entered judgment for ap-pellees. It will be noted that the findings of fact and conclusions of law requested by appellant were presented to the trial court, and ruling asked and obtained some weeks after the hearing ended, and after the issues of fact and law had been submitted to the trial judge for decision; and that that decision had been made known, although not formally entered. In such case, under ordinary circumstances, this court has many times held that, in an action at law tried without jury, the question of law of whether or not there was any substantial evidence to support the court’s findings is not reviewable. Southern Surety Co. v. United States (C. C. A.) 23 F.(2d) 55; Denver Live Stock Commission Co. v. Lee (C. C. A.) 18 F.(2d) 11; Highway Trailer Co. v. City of Des Moines, Iowa (C. C. A.) 298 F. 71; Wear v. Imperial Window Glass Co. (C. C. A.) 224 F. 60. However, because of the action of the trial court, in apparent recognition of the stipulation of counsel to hold the final disposition of the case open until December 31, 1932, to enable appellant to take such steps as might be deemed necessary to preserve its record on appeal, we do not feel justified in denying to it such review as may otherwise be permissible. Of course, no error can be assigned to the refusal of the court, sitting as a jury, to make the fact findings requested. St. Louis v. Rutz, 138 U. S. 228, 11 S. Ct. 337, 34 L. Ed. 941; Southern Surety Co. v. United States (C. C. A. 8) 23 F.(2d) 55. There is open to review in such case only the questions of whether the findings support" }, { "docid": "4204739", "title": "", "text": "appellant for special findings of fact and conclusions of law, but these are not incorporated in the bill of exceptions, and may not be considered here. Davis v. United States (C. C. A. 10) 67 F.(2d) 737, decided November 27, 1933. The bill of exceptions recite that the appellant tendered findings of fact, but does not disclose what they were. The record contains no challenge by appellant to the sufficiency of the evidence to support the findings made by the court, no request for a declaration of law that she is entitled to judgment, and no motion for a judgment in her favor. True, the bill of exceptions contains the following: “To which order of the court, in ordering judgment be entered as aforesaid, and to the entering of said judgment, the plaintiff, by her counsel, then and there duly excepted.” But such a general exception is insufficient to present the question of the sufficiency of the evidence to support the special findings. Wear v. Imperial Window Glass Co. (C. C. A. 8) 224 F. 60, 63; Mansfield Hardwood Lbr. Co. v. Horton (C. C. A. 8) 32 F. (2d) 851, 853; Tramel v. United States (C. C. A. 10) 56 F.(2d) 142. In Wear v. Imperial Window Glass Co., supra, the court said: “When an action at law is tried without a jury by a federal court, and it makes a general finding, or a special finding of facts, the act of Congress forbids a reversal by the appellate court of that finding, or the judgment thereon, ‘for any error of fact’ (Revised Statute, § 1011 [U. S. Comp. Stat. 1913, § 1672, p. 700 (28 USCA § 879]), and a finding of fact contrary to the weight of the evidence is an error of fact. “The question of law whether or not there was any substantial evidence to sustain any such finding is reviewable, as in a trial by jury, only when a request or a motion is made, denied, and excepted to, or some other like action is taken which fairly presents that question to the trial" }, { "docid": "15289015", "title": "", "text": "the trial court and its refusal to make special findings is not reviewable on appeal. White v. United States, supra. In a jury-waived case, in the absence of special findings, a general finding is conclusive upon the matters of fact and prevents any inquiry into the conclusions of law embodied therein, except in so far as the rulings during the progress of the trial were excepted to and duly preserved by bill of exceptions. But a party, by motion for judgment in his favor or by application for a declaration of law that he is entitled to judgment, may raise the question of law whether he is entitled to judgment upon all the evidence, and such question, if presented by proper bill of exceptions, will be reviewed on appeal notwithstanding a general finding in favor of the adverse party. White v. United States, supra; Fleischmann Const. Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624. Rulings upon such a motion or application for a declaration of law and other rulings on questions of law made by the court during the progress of the trial are properly a part of the trial proceedings and should be presented to the appellate court by proper bill of exceptions. White v. United States, supra; Merriam v. Huselton (C. C. A. 8) 45 F.(2d) 983, 985, 986; Federal Intermediate Credit Bank v. L’Herisson (C. C. A. 8) 33 F.(2d) 841, 843; Ana Maria Sugar Co. v. Quinones (C. C. A. 1) 251 F. 499, 504. A request for a declaration of law not presented until after the close of the trial comes too late. Southern Surety Co. v. United States (C. C. A. 8) 23 F.(2d) 55, 59; Merriam v. Huselton, supra, page 985 of 45 F.(2d). Assuming, without deciding, that the purported request for a declaration of law amounted to a motion for judgment in favor of plaintiff, or for a declaration of law that plaintiff was entitled to judgment upon all the evidence, we cannot consider it because it is not included in the bill of" }, { "docid": "23220578", "title": "", "text": "C. A. 8th, 1930); United States v. Smith, 39 F. (2d) 851, 854 (C. C. A. 1st, 1930); Southern Surety Co. of Des Moines v. United States, 23 F.(2d) 55, 58 (C. C. A. 8th, 1927); Ewert v. Thompson, 281 F. 449, 450 (C. C. A. 8th, 1922). This interpretation accords with the function of the request for ruling and exception to the denial thereof; it is to direct the judge’s attention to the specific proposition of law relied upon, so that prior to the announcement of his conclusions he may have the opportunity to consider it. True it is that after entry, and until the end of the term during which the judgment has heen entered, it may be set aside and a new trial granted, or, if tried without jury, a contrary judgment entered. That, however, is a matter entirely within the court’s discretion, and offers no guide to the scope of the general rule. We conclude that there were no rulings “in the progress of the trial,” properly before us for review, other than that on the evidence hereinabove considered. 3. The sufficiency of the special findings to sustain the judgment is reviewable without an exception whether they were made before or after judgment. South Utah Mines v. Beaver County, 262 U. S. 325, 43 S. Ct. 577, 67 L. Ed. 1004 (1923) ; Palmer v. Aeolian Co., 46 F.(2d) 746 (C. C. A. 8th, 1931). While the Supreme Court has said that findings must be either general or special and cannot be both, British Queen Mining Co. v. Baker Silver Mining Co., 139 U. S. 222, 11 S. Ct. 523, 35 L. Ed. 147 (1891), the purported special findings in that ease were in themselves formally improper. It has been held in some cases that, if a judgment is rendered on a general finding, it is immaterial whether special findings subsequently made are sufficient to support the judgment. Corliss v. Pulaski County, 116 F. 289 (C. C. A. 7th, 1902). See State National Bank of Ft. Worth v. Smith, 94 F. 605, 608 (C. C. A." }, { "docid": "13282483", "title": "", "text": "the trial court, appellant insists that the right to review is preserved. Concerning a similar situation, Judge Walter H. Sanborn, speaking for this court, had this to say: “The trial of an action at law by a federal court without a jury ends when, after full hearing, the issues of fact and law are submitted to the trial judge for decision. United States v. Atchison, Topeka & S. F. Ry. Co. (C. C. A.) 270 F. 1, 3, 4, and cases cited. We discover no record of any such timely motion, request, ruling, or exception after all the evidence was produced, when only it could he properly made, and before the trial ended. * * * “Where no request for findings or for modifications of findings were made until subsequent to the close of the trial, it is too late, after the court has filed its findings and its conclusion that judgment must he entered for the plaintiff, to except to the rulings on issues tried, and subsequent requests and rulings thereon are discretionary and not subject to review. U. S. v. Atchison, Topeka & S. F. Ry. Co. (C. C. A.) 270 F. 1, 4.” Southern Surety Co. v. United States (C. C. A.) 23 F.(2d) 55, 58, 59; certiorari denied 278 U. S. 604, 49 S. Ct. 11, 73 L. Ed. 532. And in American Surety Co. v. Cotton Belt Levee Dist. No. 1 of Phillips County, Ark. (C. C. A. 8) 58 F.(2d) 234, 235, Judge Stone said: “The hare exception to the general finding is not sufficient. * * * The request for findings and conclusions, filed after the court had acted, is unavailing as coming too late” — eiting Southern Surety Co. v. United States, supra. In the findings of fact by the trial court, the following appears: “That the failure and refusal of said contracting officer to ascertain the facts with respect to said flood and the consequent delay and his act in deterrnining that no extension of time on said contract would be granted was not an exercise of the discretion as provided" }, { "docid": "21346242", "title": "", "text": "the bill of exceptions. The settlement of a bill of exceptions is not a ministerial act, but a judicial act. Baldwin et al. v. Myers (C. C. A. 8) 75 F.(2d) 529, and cases there cited. The function of the bill of exceptions is to make that of record which is otherwise not of record, and its authenticity in this court is dependent entirely upon the certificate or order of the trial judge. It is essential that the record affirmatively show that this court has before it an accurate account of the evidence before the lower court hearing the issues of the case, together with the objections interposed, the rulings of the court thereon, and the exceptions, if any, thereto. While no particular form is insisted upon, we take this occasion to suggest that the trial judge’s certificate should leave no doubt as to the accuracy, character, and content of the record certified, and should be in substantially the following form (Sec. 170, Simkins Fed. Pr.): “I, the undersigned United States District Judge, who presided at the trial of the above entitled cause, do hereby certify that the foregoing bill of exceptions contains all of the material facts, matters, things, proceedings, objections, rulings, and exceptions thereto, occurring upon the trial of. said cause and not heretofore a part of the record herein, including all evidence adduced' at the trial ¡(or all evidence material to the issues presented by the assignments of error) ; and I further certify that the exhibits set forth or referred to, or both, in the foregoing bill of exceptions, constitute all the exhibits offered in evidence at the said trial, and I hereby make all of said exhibits a part of the foregoing bill of exceptions ; and I hereby settle and allow the foregoing bill of exceptions as a full, true, and correct bill of exceptions in this cause and order the same filed as part of the record herein, and further order the clerk of this court to attach to the said bill of exceptions, all of the said exhibits not set forth therein;" }, { "docid": "7860320", "title": "", "text": "that evidence of sales of ginger extract by the defendants, other than those charged in counts three and four, had been introduced, and that the jury should consider such evidence only in passing on count five. It is 'difficult to understand why counsel urge this refusal as error. The jury was instructed, both at the time such evidence was introduced and in the general charge, that it should consider such evidence only in passing on the offense charged in count five. We are of the opinion that the general charge sufficiently covered the matters included in the requested instructions. The court charged the jury that if the ginger extract did not conform to the formula set out in the United States Pharmacopoeia and contained more than one-half of one percent of alcohol by volume, it should be classified as intoxicating liquor. It is urged that this portion of the charge was erroneous because it omitted the element, “fit for use for beverage purposes.” No objection or exception was taken to this portion of the charge. Alleged errors during the progress of the trial should be called to the trial court’s attention by specific objection and exception in order that it may have the opportunity to correct the error. In the absence of such specific objection and exception, alleged trial errors ordinarily will not be reviewed on appeal. Order of United Commercial Travelers of America v. Greer (C. C. A. 10) 43 F.(2d) 499, 502; Chicago, M. & St. P. R. Co. v. Harrelson (C. C. A. 8) 14 F.(2d) 893, 896; American Sugar Refining Co. v. Nassif (C. C. A. 1) 45 F.(2d) 321, 326. There is a well recognized exception to this general rule that in criminal cases involving the life or liberty of the accused, the appellate courts of the United States may notice and correct serious errors in the trial of the accused, fatal to his rights, although those errors were not challenged or reserved by objections, motions, exceptions, or assignments of error. Bogileno v. United States (C. C. A. 10) 38 F.(2d) 584, 587; Van Gorder" }, { "docid": "3210638", "title": "", "text": "of the witnesses for the government to matters which are within their own knowledge, and not permit them to testify, over objection, to what some one told them, or to give their opinions based upon hearsay. The testimony o£ a government witness that the notaries who acknowledged the bills of sale of the cars to the defendant eonld not identify the persons who signed the bills or did not know who they were was incompetent and prejudicial. The defendant complains of the refusal of the court to grant his requested instruction with reference to the effect of character evidence, but no exception was taken to the instruction which the court gave covering that subject. The defendant was not entitled to have the jury instructed in any particular form of words. In Winter v. United States (C. C. A. 8) 13 F.(2d) 53, 59, we said: “The'jurors were told that this evidence of good character should be received and considered by them, in connection with all the evidence in the ease, as bearing upon the question of reasonable doubt. This was sufficient, and this exception to the charge, as well as to the action of the court in refusing to give the instruction requested, is without merit.” The question of the accuracy of the court’s charge with reference to this particular matter will not be considered, in the absence of an exception, but we take the liberty of calling attention to the eases of Winter v. United States (C. C. A.) 13 F.(2d) 53, supra, and Linde v. United States (C. C. A. 8) 13 F.(2d) 59, in which instructions as to the effect of evidence of good character were held to be proper. The judgment is reversed, and the case remanded for a new trial." }, { "docid": "7860316", "title": "", "text": "following : “Now on this 30th day of September, 1931, come the parties hereto same as on yesterday, the defendants, John Addis and A. C. Addis, being present in person, and the jury being called and all being present, the trial of said ease is proceeded with; and the parties having concluded the introduction of their evidence and rested, comes now the defendants and move the Court to instruct the jury to return verdicts of not guilty as to each of them on each and every count of the indictment, which motion is by the Court denied, to which ruling of the Court defendants, and each of them, except.” The foregoing is apparently taken from the clerk’s entries and is not signed or in anywise authenticated by the trial judge. The bill of exceptions does not contain any motion for directed verdicts of.not guilty, nor any request for a peremptory charge of not guilty, nor any ruling of the court on such motion or request. Motions for a directed verdict, requests for a peremptory charge, instructions •given and instructions refused in- criminal and daw- actions are npt a part of the record proper, which consists of the pleadings, process, verdict, and judgment. Buessel v. United States (C. C. A. 2) 258 F. 811, 815; Clune v. United, States, 159 U. S. 590, 593, 594, 16 S. Ct. 125, 40 L. Ed. 269; United States v. Taylor, 147 U. S. 695, 698, 699, 13 S. Ct. 479, 37 L. Ed. 335; Blake v. United States (C. C. A. 1) 71 F. 286; Metropolitan R. Co. v. Columbia, 195 U. S. 322, 332, 25 S. Ct. 28, 49 L. Ed. 219; Eldorado Coal & Min. Co. v. Mariotti (C. C. A. 7) 215 F. 51, 54; Suydam v. Williamson, 20 How. 427, 433, 437, 15 L. Ed. 978. A statement in the transcript of the record that certain instructions were given, br requested and refused, or that a motion for a directed verdict was made and denied, over the certificate of the clerk, avails nothing. Such matters can be brought upon the" }, { "docid": "21346240", "title": "", "text": "issues sought to be reviewed. United States Mutual Acc. Ass’n v. Robinson (C. C. A. 8) 74 F. 10; Desha County v. Crocker First Nat. Bank (C. C. A. 8) 72 F.(2d) 359; Kendrick Coal, etc., Co. v. Commissioner (C. C. A. 8) 29 F.(2d) 559; Southern Surety Co. v. United States (C. C. A. 8) 23 F.(2d) 55, 58; Chicago Great Western R. Co. v. LeValley (C. C. A. 8) 233 F. 384; McCuing v. Bovay (C. C. A. 8) 60 F.(2d) 375. In Southern Surety Co. v. United States, supra, we said: “ * * * The findings of the court below raise the legal presumption that there was competent and relevant evidence in support of them,- in the absence of a certificate by the trial judge that the bill of exceptions contains all the evidence, or-all the evidence on the particular issues, the findings concerning which are questioned. * * * ” As there was no motion for judgment at the .close of’the evidence and no request for a binding declaration of law, the evidence cannot be reviewed on appeal. But, even if it could be said that the denial of the requested declarations of law was sufficient to entitle appellants to a review of the evidence, still it is again observed that there is no assignment of error based upon this ruling of the court, and, last of all, the certificate settling the bill does not recite that- the bill contains all the evidence material to the issues sought to be presented. As the judgment is supported by the primary record, and we are powerless to review the evidence, it must be sustained. Brown Sheet Iron & Steel Co. v. Maple Leaf Oil & Refining Co. (C. C. A. 8) 68 F.(2d) 787; Nolan v. United States (C. C. A. 8) 75 F.(2d) 65. In this connection, it should perhaps be observed that there seems to be a growing laxity in the matter of the allowance and certification of bills of exception. The statute, 28 USCA § 776, requires that the trial judge allow and sign" }, { "docid": "7829439", "title": "", "text": "Request No. 1 was given substantially, except the part which asked that the jury be instructed that the evidence as to count 4 was entirely circumstantial. That part was properly refused. Request No. 5 was upon the defense of entrapment. The court in its charge correctly stated the law governing that defense. 10. From the amended assignment of errors filed it appears that the alleged incompetent testimony admitted was that disposed of under specifications 5 and 7, supra. No other testimony has been brought to our attention as required by rule 11 of this court. 11. Error cannot be assigned to the overruling of a motion for new trial. In so far as the motion in arrest preserved the challenge to the sufficiency of the indictment, the point has been ruled under specifications 1 and 2, supra. 8 and 12. We come, finally, to the question of whether the evidence was sufficient to sustain the judgment, and whether the court erred in refusing to direct a verdict of acquittal. With respect to counts 3 and 4 we think the court erred. It was an essential element of the offense in both counts that defendants were dealers in morphine, and required to register and pay the special tax as such under the provisions of the first penal provision of section 1 of the act (26 TJSCA § 211, 691, et seq.; Comp. St. § 6287g). It is true that count 3 is for conspiracy, but the conspiracy charged was to violate this first penal provision of said section 1. There being no evidence that defendants were dealers within the restrictive definition of such contained in the act itself, we are constrained to hold that in counts 3 and 4 the government failed to establish a material element of the offense charged. For the reasoning in support of this conclusion see O’Neill v. United States (C. C. A. 8) 19 F.(2d) 322, and Maupin et al. v. United States (C. C. A.) 23 F. 470, decided this day. Respecting the first count we have reached a different conclusion. This count is for" } ]

[ { "docid": "18791878", "title": "", "text": "what he knows to be the law. Our court has long treated reckless and intentional conduct as similar, see Sunstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, 1040 (7th Cir.), cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977). See also Optyl Eyewear Fashion International Corp. v. Style Cos., 760 F.2d 1045, 1048 (9th Cir.1985) (§ 1927 allows a remedy in the event of bad “intent, recklessness, or bad faith”). A lawyer’s reckless indifference to the law may impose substantial costs on the adverse party. Section 1927 permits a court to insist that the attorney bear the costs of his own lack of care. Subjective bad faith or malice is important only when the suit is objectively colorable. A lawyer who pursues a plausible claim because of the costs the suit will impose on the other side, instead of the potential recovery on the claim, is engaged in abuse of process. This is independently tortious, and it may be the basis of substantive liability under tort (or antitrust) laws as well as the basis for an award of fees. Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466 (7th Cir.1982), cert. denied, 461 U.S. 958, 103 S.Ct. 2430, 77 L.Ed.2d 1317 (1983). Even those who prevail may be liable for fees if in bad faith they cause their adversaries to bear excessive costs. Lipsig v. National Student Marketing Corp., 663 F.2d 178, 182 (D.C.Cir.1980); Wright v. Jackson, 522 F.2d 955, 958 (4th Cir.1975). This theme also appears in cases emphasizing that dogged pursuit of a colorable claim becomes actionable bad faith once the attorney learns (or should have learned) that the claim is bound to fail. E.g., Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978) (fees may be assessed against a plaintiff under 42 U.S.C. § 1988 if the “claim was frivolous, unreasonable, or groundless, or ... the plaintiff continued to litigate after it clearly became so”); Wang v. Gordon, 715 F.2d 1187 (7th Cir.1983). The principle underlying § 1927, Rule 11, and the bad faith" } ]

[ { "docid": "22872667", "title": "", "text": "situations where “the government acted to delay an indictment, hoping that the delay ... would prejudice the defense”). But it is clear from the statutory language and the case law that for purposes of § 1927, bad faith turns not on the attorney’s subjective intent, but on the attorney’s objective conduct. The term “unreasonably” necessarily connotes that the district court must compare the attorney’s conduct against the conduct of a “reasonable” attorney and make a judgment about whether the conduct was acceptable according to some objective standard. The term “vexatiously” similarly requires an evaluation of the attorney’s objective conduct. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) (noting, in the course of interpreting 42 U.S.C. § 2000e-5(k), that “the term ‘vexatious’ in no way implies that the plaintiffs subjective bad faith is a necessary prerequisite to a fee award against him”), Black’s Law Dictionary 1596 (8th ed.2004) (defining “vexatious” as “without reasonable or probable cause or excuse; harassing; annoying”). Indeed, other circuits, too, have found that the phrase “unreasonably and vexatiously” demands an objective analysis and that § 1927 does not require a malicious intent or a bad purpose. For example, in Cruz v. Savage, 896 F.2d 626 (1st Cir.1990), the First Circuit stated, “The attorney need not intend to harass or annoy by his conduct nor be guilty of conscious impropriety to be sanctioned. It is enough that an attorney acts in disregard of whether his conduct constitutes harassment or vexation .... ” Id. at 632. Similarly, in Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223 (7th Cir.1984), the Seventh Circuit noted that a court “need not find that the attorney acted because of malice” to issue sanctions against the attorney. Id. at 227 (footnote omitted). The Tenth Circuit in Braley v. Campbell, 832 F.2d 1504 (10th Cir.1987), explicitly said that the statute demands an objective analysis. Id. at 1512 (holding that “the proper standard under ... § 1927 is that excess costs, expenses, or attorney’s fees are imposable against an attorney personally for conduct that, viewed objectively, manifests" }, { "docid": "16468229", "title": "", "text": "worth noting that defendant has requested the imposition of sanctions since the beginning of this suit, based on the frivolous nature of plaintiffs claims. (Docket # 4, at ¶ 16; Docket # 10, at 14; Docket # 15). Applicable Law Under the so-called common-law “American Rule,” litigants must bear the cost of their attorneys’ fees in the absence of explicit congressional authorization to the contrary. See Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 415, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978); Bercovitch v. Baldwin School, Inc., 191 F.3d 8, 10 (1st Cir.1999). One exemption to this rule is that a court may award attorney’s fees if the losing party has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). “[T]he term Vexatious’ means that the losing party’s actions were 'frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’ ” Local 285 v. Nonotuck Resource Associates, Inc., 64 F.3d 735, 737 (1st Cir.1995) (citations omitted). Attorney’s fees are available for a prevailing defendant under this exception in ADEA cases, inasmuch as the ADEA authorizes an award of attorney’s fees only to a prevailing plaintiff. See Gray v. New England Telephone and Telegraph Co., 792 F.2d 251, 260 (1st Cir.1986). Section 1927 of the United States Code, moreover, establishes that “[a]ny attorney ... who so multiplies the proceed ings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses and attorney’s fees reasonably incurred because of such conduct.” Behavior is deemed “vexatious,” for purposes of § 1927, “when it is harassing or annoying, regardless of whether it is intended to be so.” Cruz v. Savage, 896 F.2d 626, 632 (1st Cir.1990). This is an objective standard; subjective bad faith is not necessary. Id. Thus, “[t]he attorney need not intend to harass or annoy by his conduct nor be guilty of conscious impropriety to be sanctioned. It is enough that an attorney acts in disregard of whether his conduct constitutes" }, { "docid": "18791879", "title": "", "text": "as the basis for an award of fees. Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466 (7th Cir.1982), cert. denied, 461 U.S. 958, 103 S.Ct. 2430, 77 L.Ed.2d 1317 (1983). Even those who prevail may be liable for fees if in bad faith they cause their adversaries to bear excessive costs. Lipsig v. National Student Marketing Corp., 663 F.2d 178, 182 (D.C.Cir.1980); Wright v. Jackson, 522 F.2d 955, 958 (4th Cir.1975). This theme also appears in cases emphasizing that dogged pursuit of a colorable claim becomes actionable bad faith once the attorney learns (or should have learned) that the claim is bound to fail. E.g., Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978) (fees may be assessed against a plaintiff under 42 U.S.C. § 1988 if the “claim was frivolous, unreasonable, or groundless, or ... the plaintiff continued to litigate after it clearly became so”); Wang v. Gordon, 715 F.2d 1187 (7th Cir.1983). The principle underlying § 1927, Rule 11, and the bad faith exception to the American Rule is that in a system requiring each party to bear its own fees and costs, courts will ensure that each party really does bear the costs and does not foist expenses off on its adversaries. One cost of a lawsuit is research. An attorney must ascertain the facts and review the law to determine whether the facts fit within a recognized entitlement to relief. This may be a costly endeavor. Defense against a colorable claim also may be very costly. It would warp the system if a lawyer for a would-be claimant could simply file a complaint and require the adversary to do both the basic research to identify the claim and then the further work needed to craft a response. Suits are easy to file and hard to defend. Litigation gives lawyers opportunities to impose on their adversaries costs much greater than they impose on their own clients. The greater the disparity, the more litigation becomes a predatory instrument rather than a method of resolving honest disputes. The recognition" }, { "docid": "22596206", "title": "", "text": "(1984); Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 226-27 (7th Cir.1984). Rather than a subjective standard of bad faith, these courts have stated that section 1927 requires a more relaxed, objective standard that does not require conscious impropriety. See, e.g., Jones, 789 F.2d at 1230; In re Ruben, 825 F.2d at 984. Nevertheless, all of the courts, including those applying a lesser standard, at minimum agree that merely unintended, inadvertent, and negligent acts will not support an imposition of sanctions under section 1927. Ruben, 825 F.2d at 984. In this circuit we have never explicitly construed the language “unreasonably and vexatiously” contained in section 1927. Our prior decisions reveal, however, that while an attorney’s bad faith will always justify sanctions under section 1927, we do not require a finding of subjective bad faith as a predicate to the imposition of sanctions. See Action Mfg., Inc. v. Fairhaven Textile Corp., 790 F.2d 164, 166 (1st Cir.) (sanctions imposed on appeal), cert. denied, 479 U.S. 854, 107 S.Ct. 188, 93 L.Ed.2d 122 (1986); United States v. Nesglo, Inc., 744 F.2d 887, 891-92 (1st Cir.1984); see also Lisa v. Fournier Marine Corp., 866 F.2d 530, 532 (1st Cir.) (sanctions imposed on appeal), cert. denied, - U.S. -, 110 S.Ct. 75, 107 L.Ed.2d 41 (1989); Ochoa Realty Corp. v. Faria, 815 F.2d 812, 817-18 (1st Cir.1987) (sanctions imposed on appeal). Behavior is “vexatious” when it is harassing or annoying, regardless of whether it is intended to be so. Thus, if an attorney’s conduct in multiplying proceedings is unreasonable and harassing or annoying, sanctions may be imposed under section 1927. The attorney need not intend to harass or annoy by his conduct nor be guilty of conscious impropriety to be sanctioned. It is enough that an attorney acts in disregard of whether his conduct constitutes harassment or vexation, thus displaying a “serious and studied disregard for the orderly process of justice.” Nesglo, 744 F.2d at 891 (quoting Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163, 1167 (7th Cir.1968)); Action, 790 F.2d at 166. Yet, we agree with other courts considering this question" }, { "docid": "4008615", "title": "", "text": "in arguing that vexatious conduct is the same as objectively unreasonable conduct is Walter v. Fiorenzo, 840 F.2d 427, 433 (7th Cir.1988). However, when reading the entire sentence on which Chalmers relies for this proposition, rather than reading only that portion of the sentence which Chalmers quoted, it becomes clear that ordinary negligence was not the standard set forth in that case. To the contrary, in Fiorenzo this court stated, “A court may impose sanctions under 28 U.S.C. § 1927, against an attorney where that attorney has acted in an objectively unreasonable manner by engaging in a ‘serious and studied disregard for the orderly process of justice’....” Fiorenzo, 840 F.2d at 433 (citations omitted) (emphasis added). This statement certainly does not stand for the proposition that any unreasonable conduct is sanctionable under section 1927. Chalmers also relies on TCI in arguing that objectively unreasonable conduct satisfies section 1927’s vexatious requirement. However, we must be careful to place that case in context. In TCI this court was grappling with the question of whether bad faith meant something other than subjective ill will. TCI, 769 F.2d at 445. Therefore, any reference to objective reasonableness in that case was made in order to emphasize that bad faith can be demonstrated by objective as well as subjective evidence — which we explained meant that recklessness or indifference to the law constitutes bad faith. Id.; see also Ordower, 826 F.2d at 1574 (interpreting TCI to mean that reckless conduct as well as intentional conduct is sufficient for section 1927 sanctions). Stating that bad faith has an objective component is far from saying that ordinary negligence constitutes bad faith. Chalmers also relies on Hill v. Norfolk Western Railway Co., 814 F.2d 1192, 1202 (7th Cir.1987), for the proposition that ordinary negligence constitutes vexatious conduct. However, our discussion in Norfolk, like the discussion in TCI, focuses on whether or not intentional misconduct is a prerequisite for imposing sanctions under section 1927. As such, that case was not necessarily dealing with the question of whether ordinary negligence is sufficient for section 1927 sanctions. And, in any event, Norfolk" }, { "docid": "15560013", "title": "", "text": "power to impose the sanctions in this case is not in doubt. Two sources of authority fit this situation: either 28 U.S.C. § 1927 or the inherent power of the court. Since the inherent power of the court “is a residual authority, to be exercised sparingly” and only when other rules do not provide sufficient basis for sanctions, Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., 313 F.3d 385, 390-91 (7th Cir.2002), we will presume these sanctions to have been the product of § 1927. Either way, we review an award of sanctions for an abuse of discretion, Chambers v. NASCO, Inc., 501 U.S. 32, 55, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Kapco Mfg., 886 F.2d at 1491, and we see none here. Section 1927 provides that “[a]ny attorney ... who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” Some of our cases say either subjective or objective bad faith is a prerequisite for awarding sanctions pursuant to § 1927, see, e.g., Moriarty v. Svec, 429 F.3d 710, 722 (7th Cir.2005), while others seem to suggest otherwise, see, e.g., Hill v. Norfolk & W. Ry. Co., 814 F.2d 1192, 1202 (7th Cir.1987); Westinghouse Elec. Corp. v. NLRB, 809 F.2d 419, 425 (7th Cir.1987). We read the cases as drawing a distinction between subjective and objective bad faith. Subjective bad faith, the more difficult type of bad faith to prove, is not always necessary. Hill, 814 F.2d at 1202; Westinghouse, 809 F.2d at 425. Subjective bad faith must be shown only if the conduct under consideration had an objectively colorable basis. In re TCI Ltd., 769 F.2d 441, 445 (7th Cir.1985). The standard for objective bad faith does not require a finding of malice or ill will; reckless indifference to the law will qualify. Id. “If a lawyer pursues a path that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound, the conduct is objectively unreasonable and vexatious.” Riddle & Assocs. P.C." }, { "docid": "6051465", "title": "", "text": "v. Giant Eagle Markets, Inc., 883 F.2d 1184, 1190 (3d Cir.1989). A requisite element to impose sanctions under § 1927 is a finding of willful “bad faith.” Williams, 883 F.2d at 1190-91; Ford v. Temple Hosp., 790 F.2d 342, 347 (3d Cir.1986). A district court may impose sanctions if it finds the “ ‘plaintiffs actions was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’ ” Ford, 790 F.2d at 350, quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). The Court of Appeals for the Third Circuit has stated that the “intentional advancement of a baseless contention that is made for an ulterior purpose, e.g., harassment or delay” may be indicative of bad faith. Id. at 347. Similarly, sanctions are appropriate under § 1927 where a party continues to pursue claims after having been formally or informally notified that these claims were barred by the statute of limitations. See Fred A. Smith Lumber Co. v. Edidin, 845 F.2d 750 (7th Cir.1988); Matthews v. Freedman, 128 F.R.D. 194, 207 (E.D.Pa.1989) (Gawthrop, J.). A finding of “bad faith” is a factual determination to be made by the court. Under § 1927, even if a lawsuit was initially filed in good faith, sanctions may be imposed on an attorney for all costs and fees incurred after the continuation of the suit which is deemed to be in bad faith. Id. See Ford, 790 F.2d at 350. Furthermore, “[o]nce a finding of bad faith had been made, the appropriateness of sanctions is a matter entrusted to the discretion of the district court.” Quiroga v. Hasbro, Inc., 934 F.2d 497, 505 (3d Cir.1991), citing Hackman v. Valley Fair, 932 F.2d 239, 242 (3d Cir.1991), cert. denied, 502 U.S. 940, 112 S.Ct. 376, 116 L.Ed.2d 327 (1991). Additionally, this Court has the inherent power to impose sanctions, including attorney’s fees, on counsel for bad faith conduct. Chambers v. NASCO, Inc., 501 U.S. 32, 46, 111 S.Ct. 2123, 2134, 115 L.Ed.2d 27 (1991). This Court’s inherent power to impose sanctions for such conduct" }, { "docid": "6051464", "title": "", "text": "D40, page 6). 186. Expenses incurred in connection with the December 9, 1995 hearing on the Motion for Sanctions were $158.57. 187. The total expenses of $2,608.47 were reasonably incurred in connection with the Motion for Sanctions. 188. The expenses incurred were fair and reasonable. 189. The expenses incurred represent excess expenses caused by the sanctionable conduct of Robert S. Mirin. 190. The total fees and expenses incurred were $52,980.47. 191. The excess costs, expenses and attorneys’ fees reasonably incurred by the media defendants because of Robert S. Mirin’s willful bad faith and unreasonable conduct are $52,980.47. III. Discussion. Pursuant to 28 U.S.C. § 1927, a court may impose sanctions on counsel for engaging in conduct that “multiplies the proceedings in any case unreasonably and vexatiously.” 28 U.S.C. § 1927 (1980). Under § 1927, a court may require that counsel personally satisfy “the excess costs, expenses, and attorney’s fees reasonably incurred because of such conduct.” Id. Sanctions under § 1927 are directed at the offending attorney and may not be imposed upon his clients. Williams v. Giant Eagle Markets, Inc., 883 F.2d 1184, 1190 (3d Cir.1989). A requisite element to impose sanctions under § 1927 is a finding of willful “bad faith.” Williams, 883 F.2d at 1190-91; Ford v. Temple Hosp., 790 F.2d 342, 347 (3d Cir.1986). A district court may impose sanctions if it finds the “ ‘plaintiffs actions was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’ ” Ford, 790 F.2d at 350, quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). The Court of Appeals for the Third Circuit has stated that the “intentional advancement of a baseless contention that is made for an ulterior purpose, e.g., harassment or delay” may be indicative of bad faith. Id. at 347. Similarly, sanctions are appropriate under § 1927 where a party continues to pursue claims after having been formally or informally notified that these claims were barred by the statute of limitations. See Fred A. Smith Lumber Co. v. Edidin, 845 F.2d 750 (7th Cir.1988);" }, { "docid": "22112209", "title": "", "text": "700, 54 L.Ed.2d 648 (1978), that “the term ‘vexatious’ in no way implies that the plaintiff’s subjective bad faith is a necessary prerequisite to a fee award against him,” and with our recent suggestion that “negligent inattention” is a sufficient predicate for imposing sanctions under section 1927, see Westinghouse Electric Corp. v. NLRB, supra, 809 F.2d at 425. In re TCI Ltd., 769 F.2d 441, 445-46 (7th Cir.1985), interpreting Knorr, suggests that bad faith is relevant only if the suit is colorable; this parallels the distinction in tort law between abuse of process and malicious prosecution. See Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466, 470-71 (7th Cir.1982). At all events, proof of intentional or even negligent misconduct, while it would certainly provide an added reason for a sanction under Rule 38 or any other provision, is not a prerequisite to imposing sanctions under Rule 38. See, e.g., Munson v. Friske, 754 F.2d 683, 698 n. 10 (7th Cir.1985). That rule has no language corresponding to “vexatiously.” And lest there be any doubt about the nature of our action, we emphasize that we are not accusing Hill’s counsel of morally blameworthy conduct. We find merely that he made (we assume in perfect good faith) objectively groundless legal arguments for which a monetary sanction is proper in order to protect this court’s ability to serve litigants with meritorious cases and in order to make lawyers give thoughtful consideration to whether there are grounds for an appeal before filing an appeal. This is not a new principle. The filing of an appeal should never be a conditioned reflex. “About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.” 1 Jessup, Elihu Root 133 (1938). The text of Rule 38, and our previous decisions applying it, provide all the notice that an attorney could reasonably demand that sanctions may be imposed on counsel directly for the making of frivolous legal arguments in this court — and imposed without a hearing, if there are no factual questions. The cases we cited" }, { "docid": "22872666", "title": "", "text": "to the excess proceedings, i.e., the sanction may not exceed the “costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” Id. at 1396. We have consistently held that an attorney multiplies proceedings “unreasonably and vexatiously” within the meaning of the statute only when the attorney’s conduct is so egregious that it is “tantamount to bad faith.” Avirgan v. Hull, 932 F.2d 1572, 1582 (11th Cir.1991); see also Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir.2003) (“ ‘Bad faith’ is the touchstone.”). The Amlongs argue, however, that “bad faith” in this context means subjective bad faith — that is, deliberate wrongdoing, such as proceeding with claims the attorney knows for a fact are false or frivolous. In other legal contexts, the term “bad faith” usually refers to deliberate fraud or misconduct. See Black’s Law Dictionary 149 (8th ed.2004) (defining “bad faith” as “[djishonesty of belief or purpose”); cf. United States v. Foxman, 87 F.3d 1220, 1223 n. 2 (11th Cir.1996) (interpreting references to “bad faith” delay in criminal prosecutions to mean situations where “the government acted to delay an indictment, hoping that the delay ... would prejudice the defense”). But it is clear from the statutory language and the case law that for purposes of § 1927, bad faith turns not on the attorney’s subjective intent, but on the attorney’s objective conduct. The term “unreasonably” necessarily connotes that the district court must compare the attorney’s conduct against the conduct of a “reasonable” attorney and make a judgment about whether the conduct was acceptable according to some objective standard. The term “vexatiously” similarly requires an evaluation of the attorney’s objective conduct. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) (noting, in the course of interpreting 42 U.S.C. § 2000e-5(k), that “the term ‘vexatious’ in no way implies that the plaintiffs subjective bad faith is a necessary prerequisite to a fee award against him”), Black’s Law Dictionary 1596 (8th ed.2004) (defining “vexatious” as “without reasonable or probable cause or excuse; harassing; annoying”). Indeed, other circuits, too, have found that" }, { "docid": "22596205", "title": "", "text": "States v. Blodgett, 709 F.2d 608, 610 (9th Cir.1983) (section 1927 requires a finding that counsel acted recklessly or in bad faith); Optyl Eyewear Fashion Int’l Corp. v. Style Cos., Ltd., 760 F.2d 1045, 1048 (9th Cir.1985) (section 1927 requires a showing of intent, recklessness or bad faith); Suslick v. Rothschild Secs. Corp., 741 F.2d 1000, 1006 (7th Cir.1984) (section 1927 requires subjective bad faith by the attorney); Baker Indus., Inc. v. Cerberus, 764 F.2d 204, 208 (3rd Cir.1985) (bad faith is a necessary predicate to liability under section 1927). Other courts have ruled that section 1927 does not require a demonstration of bad faith as a precondition to the imposition of sanctions. In re Ruben, 825 F.2d 977, 983-84 (6th Cir.1987), cert. denied, 485 U.S. 934, 108 S.Ct. 1108, 99 L.Ed.2d 269 (1988); Jones v. Continental Corp., 789 F.2d 1225, 1230 (6th Cir.1986); Lewis v. Brown & Root, Inc., 711 F.2d 1287, 1291-92 (5th Cir.1983), aff'd in part on rehearing, 722 F.2d 209, cert. denied, 467 U.S. 1231, 104 S.Ct. 2690, 81 L.Ed.2d 884 (1984); Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 226-27 (7th Cir.1984). Rather than a subjective standard of bad faith, these courts have stated that section 1927 requires a more relaxed, objective standard that does not require conscious impropriety. See, e.g., Jones, 789 F.2d at 1230; In re Ruben, 825 F.2d at 984. Nevertheless, all of the courts, including those applying a lesser standard, at minimum agree that merely unintended, inadvertent, and negligent acts will not support an imposition of sanctions under section 1927. Ruben, 825 F.2d at 984. In this circuit we have never explicitly construed the language “unreasonably and vexatiously” contained in section 1927. Our prior decisions reveal, however, that while an attorney’s bad faith will always justify sanctions under section 1927, we do not require a finding of subjective bad faith as a predicate to the imposition of sanctions. See Action Mfg., Inc. v. Fairhaven Textile Corp., 790 F.2d 164, 166 (1st Cir.) (sanctions imposed on appeal), cert. denied, 479 U.S. 854, 107 S.Ct. 188, 93 L.Ed.2d 122 (1986); United States" }, { "docid": "22112207", "title": "", "text": "consists of making objectively groundless legal arguments in briefs filed in this court, there are no issues that a hearing could illuminate. All the relevant “conduct” is laid out in the briefs themselves; neither the mental state of the attorney nor any other factual issue is pertinent to the imposition of sanctions for such conduct. Where a hearing would be pointless it is not required, see United States v. Nesglo, Inc., 744 F.2d 887 (1st Cir.1984); hence “if there are no contested factual issues the district judge can proceed summarily,” Centurion Reinsurance Co. v. Singer, 810 F.2d 140, 143 (7th Cir.1987), as we are doing here. Cf. Fed.R.Crim.P. 42(a) (“A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court”); Commodity Futures Trading Comm'n v. Premex, Inc., 655 F.2d 779, 782 n. 2 (7th Cir.1981). If the question were whether Hill’s counsel had made arguments unsupported by the trial record (and if that record were not a part of the record before us), or had made frivolous legal arguments willfully, or maliciously, or with “conscious indifference” to their validity, or otherwise in bad faith, there would be a factual issue and he would be entitled to a hearing. See Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 227-28 (7th Cir.1984). The standard for the imposition of sanctions under Rule 38 is an objective one, however; it has nothing to do with the mental state of the person sanctioned. See, e.g., Bacon v. American Federation of State, County & Municipal Employees Council, # 13, 795 F.2d 33, 35 (7th Cir.1986). And it is under Rule 38 that we are proceeding in this case. Knorr suggests that a finding of intentional misconduct is a prerequisite to imposing sanctions under section 1927. See 738 F.2d at 226-27. This reading is supported by the word “vexatiously” in section 1927, but is in tension with the Supreme Court’s statement in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694," }, { "docid": "10218813", "title": "", "text": "purpose clause. There can never be a proper purpose in submitting a paper or taking a position which counsel knows is legally and factually unjustified. Doing so can have no purpose other than harassment, delay, or increasing the costs of litigation. 28 U.S.C. § 1927 reads: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct. “The purpose of section 1927 is to penalize attorneys who engage in dilatory conduct.” Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 226 (7th Cir.1984) (citation omitted). Consequently, it may only be used to sanction needless delay. Id. See also, Indianapolis Colts v. Mayor & City Council, 775 F.2d 177, 183 (7th Cir.1985). The critical element to an award under § 1927 is bad faith and such a finding is usually necessary. In re Peoro, 793 F.2d 1048, 1051 (9th Cir.1986). “Despite its sound, however, ‘bad faith’ has an objective meaning as well as a subjective one.” In re TCI Ltd., supra, 769 F.2d at 445 (citation omitted). “Subjective bad faith or malice is important only when the suit is objectively colorable.” Id. Consequently, [a] court may impose sanctions under 28 U.S.C. § 1927, against an attorney where that attorney has acted in an objectively unreasonable manner by engaging in a ‘serious and studied disregard for the orderly process of justice’ or where a ‘claim [is] without a plausible legal or factual basis and lacking in justification.’ In determining whether an attorney’s actions were objectively unreasonable ‘a court may infer intent from a total lack of factual or legal basis for a suit.’ Walter v. Fiorenzo, 840 F.2d 427, 433 (7th Cir.1988) (emphasis original) (citations omitted). Thus, [i]f a lawyer pursues a path that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound, the conduct is objectively unreasonable and vexatious. To put this a little differently," }, { "docid": "22112208", "title": "", "text": "record were not a part of the record before us), or had made frivolous legal arguments willfully, or maliciously, or with “conscious indifference” to their validity, or otherwise in bad faith, there would be a factual issue and he would be entitled to a hearing. See Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 227-28 (7th Cir.1984). The standard for the imposition of sanctions under Rule 38 is an objective one, however; it has nothing to do with the mental state of the person sanctioned. See, e.g., Bacon v. American Federation of State, County & Municipal Employees Council, # 13, 795 F.2d 33, 35 (7th Cir.1986). And it is under Rule 38 that we are proceeding in this case. Knorr suggests that a finding of intentional misconduct is a prerequisite to imposing sanctions under section 1927. See 738 F.2d at 226-27. This reading is supported by the word “vexatiously” in section 1927, but is in tension with the Supreme Court’s statement in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978), that “the term ‘vexatious’ in no way implies that the plaintiff’s subjective bad faith is a necessary prerequisite to a fee award against him,” and with our recent suggestion that “negligent inattention” is a sufficient predicate for imposing sanctions under section 1927, see Westinghouse Electric Corp. v. NLRB, supra, 809 F.2d at 425. In re TCI Ltd., 769 F.2d 441, 445-46 (7th Cir.1985), interpreting Knorr, suggests that bad faith is relevant only if the suit is colorable; this parallels the distinction in tort law between abuse of process and malicious prosecution. See Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466, 470-71 (7th Cir.1982). At all events, proof of intentional or even negligent misconduct, while it would certainly provide an added reason for a sanction under Rule 38 or any other provision, is not a prerequisite to imposing sanctions under Rule 38. See, e.g., Munson v. Friske, 754 F.2d 683, 698 n. 10 (7th Cir.1985). That rule has no language corresponding to “vexatiously.” And lest there be any doubt" }, { "docid": "23017916", "title": "", "text": "to counsel for both parties whenever an appeal is filed) contain a Practice Note to Rule 38, stating: \"A party whose [appeal] has been challenged as frivolous is expected to respond to the challenge in the reply brief or to voluntarily request dismissal of the case.” (emphasis added). . As another court has observed, an ”[o]utside-chance opportunity for a megabucks prize must cost to play.” Commonwealth Elec. Co. v. Woods Hole, Martha’s Vineyard & Nantucket Steamship Auth., 754 F.2d 46, 49 (1st Cir.1985). . That Rule 38 does not require any showing of bad faith is widely accepted among our sister circuits as well. See, e.g., Sun Ship, Inc. v. Matson Navigation Co., 785 F.2d 59, 64 (3d Cir.1986) (“Rule 38 focuses on the merits of the appeal regardless of good or bad faith.”); Coghlan, 852 F.2d at 808 (\"[I]ll purpose is in no way a necessary element for imposition of sanctions under rule 38.”); Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1202 (7th Cir.1987) (per Posner, J.) (\"[W]e emphasize that we are not accusing Hill’s counsel of morally blameworthy conduct. We find merely that he made (we assume in perfect good faith) objectively groundless legal arguments for which a monetary sanction is proper in order to protect this court’s ability to serve litigants with meritorious cases and in order to make lawyers give thoughtful consideration to whether there are grounds for an appeal before filing an appeal.’’); Asbury v. Brougham, 866 F.2d 1276, 1283 (10th Cir.1989) (\"Subjective bad faith is not a prerequisite to an award of damages and double costs.”). That intent is not a requirement for imposing sanctions has also been recognized with respect to sanctions under 28 U.S.C. § 1927. See Westinghouse Elec. Corp. v. NLRB, 809 F.2d 419, 425 (7th Cir.1987) (“The penalty for a violation should smart. Even if only negligence was at work, counsel must learn to be alert.”). See also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978) (the language of section 1927 “in no way implies that the plaintiffs subjective" }, { "docid": "22729720", "title": "", "text": "would render such an award unjust”. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (per curiam). A different standard applies when a defendant prevails, for there attorneys’ fees may be awarded only if the court finds that the plaintiff’s claim was “ ‘frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.’ ” Hughes v. Roe, 449 U.S. 5, 15, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980) (per curiam) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 701, 54 L.Ed.2d 648 (1978)). Significantly, the detailed findings of bad faith necessary to justify invocation of the inherent power exception to the American Rule are not a prerequisite to an award of attorneys’ fees under § 1988. See Davidson v. Keenan, 740 F.2d 129, 133 (2d Cir.1984). Indeed, subjective bad faith is not even a requirement for imposition of sanctions in favor of a prevailing defendant. “The proper test for that award is whether the claim itself is clearly meritless. * * * [I]f a claim is groundless, the mere fact that the plaintiff relies on his attorney’s erroneous contrary advice does not relieve him of liability * * * ”. Id. 4. 28 U.S.C. § 1927. Unlike § 1988, which shifts attorneys’ fees from one party to another, § 1927, entitled “Counsel’s liability for excessive costs”, imposes liability for misconduct on “any attorney or other person admitted to conduct cases in any court”. 28 U.S.C. § 1927. The section provides that any such person “who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” Id. For many years § 1927 imposed a burden only for excess costs and expenses, which only rarely involved significant sums. As a result it generated very little litigation. See Roadway Express v. Piper, 447 U.S. 752, 759-64, 100 S.Ct. 2455, 2460-63, 65 L.Ed.2d 488 (1980). Since 1980, however, when it was" }, { "docid": "23017917", "title": "", "text": "not accusing Hill’s counsel of morally blameworthy conduct. We find merely that he made (we assume in perfect good faith) objectively groundless legal arguments for which a monetary sanction is proper in order to protect this court’s ability to serve litigants with meritorious cases and in order to make lawyers give thoughtful consideration to whether there are grounds for an appeal before filing an appeal.’’); Asbury v. Brougham, 866 F.2d 1276, 1283 (10th Cir.1989) (\"Subjective bad faith is not a prerequisite to an award of damages and double costs.”). That intent is not a requirement for imposing sanctions has also been recognized with respect to sanctions under 28 U.S.C. § 1927. See Westinghouse Elec. Corp. v. NLRB, 809 F.2d 419, 425 (7th Cir.1987) (“The penalty for a violation should smart. Even if only negligence was at work, counsel must learn to be alert.”). See also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978) (the language of section 1927 “in no way implies that the plaintiffs subjective bad faith is a necessary prerequisite to a fee award against him”). . All of our sister circuits have also awarded actual attorney fees based on Rule 38. See, e.g., Local Union No. 251 v. Narragansett Improvement Co., 503 F.2d 309, 313 (1st Cir.1974); Bankers Trust Co. v. Publicker Indus., 641 F.2d 1361, 1368 (2d Cir.1981) (capping fee award at 510,000); Hilmon Co. v. Hyatt Int'l, 899 F.2d 250, 254 (3d Cir.1990) (awarding over $23,000 in actual fees); Eaton v. Board of Educ., 459 F.2d 684, 686 (4th Cir.1972); Self v. Self, 614 F.2d 1026, 1028 (5th Cir.1980); NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 591 (6th Cir.1987); In re Central Ice Cream Co., 841 F.2d 732, 735 (7th Cir.1988); American Family Life Assurance Co. v. Teasdale, 733 F.2d 559, 571 (8th Cir.1984); Libby, McNeill & Libby v. City Nat'l Bank, 592 F.2d 504, 514-15 (9th Cir.1978); Braley v. Campbell, 832 F.2d 1504, 1513-14 (10th Cir.1987) (en banc); Collins v. Amoco Prod. Co., 706 F.2d 1114, 1115 (11th Cir.1983); Reliance, 792 F.2d at 1138-39." }, { "docid": "4008616", "title": "", "text": "something other than subjective ill will. TCI, 769 F.2d at 445. Therefore, any reference to objective reasonableness in that case was made in order to emphasize that bad faith can be demonstrated by objective as well as subjective evidence — which we explained meant that recklessness or indifference to the law constitutes bad faith. Id.; see also Ordower, 826 F.2d at 1574 (interpreting TCI to mean that reckless conduct as well as intentional conduct is sufficient for section 1927 sanctions). Stating that bad faith has an objective component is far from saying that ordinary negligence constitutes bad faith. Chalmers also relies on Hill v. Norfolk Western Railway Co., 814 F.2d 1192, 1202 (7th Cir.1987), for the proposition that ordinary negligence constitutes vexatious conduct. However, our discussion in Norfolk, like the discussion in TCI, focuses on whether or not intentional misconduct is a prerequisite for imposing sanctions under section 1927. As such, that case was not necessarily dealing with the question of whether ordinary negligence is sufficient for section 1927 sanctions. And, in any event, Norfolk was decided on Rule 38 grounds, not section 1927 grounds. As the Supreme Court indicated in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978), it is difficult to apply abstract words to concrete cases. If our language has been less than clear it is because of this difficulty and not because we intended to extend the meaning of vexatious to encompass ordinary negligence. Indeed, when we look to the facts in our prior decisions, we find no cases where we have upheld sanctions upon a showing of a simple mistake or ordinary negligence. Rather, cases in which this court has upheld section 1927 sanctions have involved situations in which counsel acted recklessly, counsel raised baseless claims despite notice of the frivolous nature of these claims, or counsel otherwise showed indifference to statutes, rules, or court orders. See, for example, Fred A. Smith Lumber Co. v. Edidin, 845 F.2d 750, 752-54 (7th Cir.1988) (took ostrich-like tactic of pretending potentially dispositive authority did not exist; persisted in putting" }, { "docid": "4008613", "title": "", "text": "from the merits of the action, and be effectively unreviewable on appeal from a final judgment.’ ” Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 226 (7th Cir., 1984) (citation omitted). In Knorr this court held that an order granting attorneys’ fees under 28 U.S.C. § 1927 against counsel who no longer has connection with the case meets these criteria. Kane and Kraft, who no longer represent Kotsilieris, suffered section 1927 sanctions. Therefore, we have appellate jurisdiction to review the district court’s order of attorneys’ fees under the collateral order doctrine. Id. at 226. B. Was Award Justified? The decision to award sanctions is solely within the discretion of the district court subject to the abuse of discretion standard. Kapco v. Mfg. Co. v. C & O Enter., Inc., 886 F.2d 1485, 1491 (7th Cir. 1989). Under section 1927 an attorney “who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927 (emphasis added). The meaning of “vexatiously” is ,at the heart of this dispute. Chalmers argues that objectively unreasonable behavior constitutes vexatious conduct under section 1927. Such a reading seems to equate vexatious with unreasonable conduct. However, the statute explicitly requires that counsel act unreasonably and vexatiously before sanctions are warranted. We can, therefore, assume that Congress intended vexatiously to mean something other than unreasonably. In fact, our decisions have indicated just that. That is, our past decisions have interpreted vexatious to mean either subjective or objective bad faith. See, for example, Ordower v. Feldman, 826 F.2d 1569, 1574 (7th Cir.1987) (indicating that intentional ill will or reckless conduct constitutes vexatious conduct); In re TCI Ltd., 769 F.2d 441, 445 (7th Cir.1985) (bad faith can be demonstrated by subjective evidence of malice, objective evidence of reckless conduct, or indifference to the law). Chalmers, however, cites a few of this court’s statements out of context in order to argue that ordinary negligence meets section 1927’s vexatious requirement. One case on which Chalmers relies" }, { "docid": "4008617", "title": "", "text": "was decided on Rule 38 grounds, not section 1927 grounds. As the Supreme Court indicated in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978), it is difficult to apply abstract words to concrete cases. If our language has been less than clear it is because of this difficulty and not because we intended to extend the meaning of vexatious to encompass ordinary negligence. Indeed, when we look to the facts in our prior decisions, we find no cases where we have upheld sanctions upon a showing of a simple mistake or ordinary negligence. Rather, cases in which this court has upheld section 1927 sanctions have involved situations in which counsel acted recklessly, counsel raised baseless claims despite notice of the frivolous nature of these claims, or counsel otherwise showed indifference to statutes, rules, or court orders. See, for example, Fred A. Smith Lumber Co. v. Edidin, 845 F.2d 750, 752-54 (7th Cir.1988) (took ostrich-like tactic of pretending potentially dispositive authority did not exist; persisted in putting forth claims despite fact that statute of limitations clearly barred claims; and acted in bad faith in filing a fraud claim in hopes that future discovery would lead to sufficient facts to support such a claim); Fiorenzo, 840 F.2d at 435 (counsel sanctioned because after four years of discovery and after dismissal of' three other defendants it should have been obvious to counsel that claim was baseless without alleging more facts); Ordower, 826 F.2d at 1575 (method of serving defendants in piecemeal fashion constituted total indifference to Fed.R.Civ.P. 4(j)); Westinghouse Elec. Corp. v. NLRB, 809 F.2d 419 (7th Cir.1987) (indifference to Rules of Appellate Procedure and this court’s order). Even Westinghouse — a case in which this court acknowledged that counsel’s actions may have been nothing more than “negligent inattention” to the rules of appellate procedure — involved more than ordinary negligence. Counsel in Westinghouse ignored appellate rules as well as an explicit order by this court. Playing ostrich to avoid compliance with appellate rules and court orders constitutes indifference for these rules and orders," } ]

[ { "docid": "21469072", "title": "", "text": "plaintiffs documents “in furtherance of the scheme for Triple-S to obtain an economic benefit that it does not rightfully deserve.” The declarations do not explain, however, how any of these “schemes” equates with a “scheme to defraud” under the mail and wire fraud statutes—other than the statement that each individual plaintiff “would have no way of knowing of [the] scheme” and, again, sim- pie nondisclosure does not mail or wire fraud make. As the district court reasoned, the expert declarations (or even certain snippets of the plaintiffs’ own deposition testimony) might have buttressed a theory that the defendants’ claim practices violated the express or implied terms of their contracts with the plaintiffs, but “breach of contract itself [does not] constitute a scheme to defraud. Rather, the scheme must be intended to deceive another, by means of false or fraudulent pretenses, representations, promises, or other deceptive conduct.” McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904 F.2d 786, 791 (1st Cir.1990) (citations omitted). Neither the experts’ declarations—nor, by the plaintiffs’ own admission, their own declarations or deposition testimony—so much as hint at such a scheme. Accordingly, “it is not simply details that [the plaintiffs] lack, but the substance of a RICO claim.” N. Bridge Assocs., Inc. v. Boldt, 274 F.3d 38, 44 (1st Cir.2001). The plaintiffs therefore had no right to further discovery to develop their ill-defined theory of mail and wire fraud. See id.; see also Ahmed v. Rosenblatt, 118 F.3d 886, 889 (1st Cir.1997). The district court correctly entered summary judgment for the defendants on the plaintiffs’ fraud-based claims. See Murr Plumbing, Inc. v. Scherer Bros. Fin. Servs. Co., 48 F.3d 1066, 1070 (8th Cir.1995) (“A district court may enter summary judgment dismissing a complaint alleging fraud if the complaint fails to satisfy the requirements of Rule 9(b).”). The plaintiffs also challenge the district court’s entry of summary judgment on their claim premised on extortion in violation of the Hobbs Act. The Act outlaws extortion or attempted extortion affecting interstate commerce, see, e.g., United States v. Capozzi, 347 F.3d 327, 335 (1st Cir.2003), defining extortion as “the obtaining of" } ]

[ { "docid": "8144712", "title": "", "text": "evidence on which a reasonable trier of fact could conclude that Defendants perpetrated “any constitutional violations upon which a § 1983 claim could be based.” Swindle v. Livingston Parish Sch. Bd., No. 06-837-JJB, 2008 WL 5157727, at *5 (M.D.La. Dec. 9, 2008) (unpublished). The district court did not reach any of the affirmative defenses raised by Defendants. Plaintiffs timely appealed. STANDARD OF REVIEW “In determining whether a district court properly granted summary judgment, this Court must review the record under the same standards that guided the district court.” Little v. Liquid Air Corp., 952 F.2d 841, 847 (5th Cir.1992). ‘We must review the evidence, as well as the inferences that may be drawn from the evi dence, in the light most favorable to the party that opposed the motion for summary judgment.” Id. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is required against a party who, “after adequate time for discovery]]] ... fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, All U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Conversely, “[i]f the evidence would permit a reasonable trier of fact to find for the non-moving party, then summary judgment should not be granted.” Anaya v. Traylor Bros., Inc., 478 F.3d 251, 253 (5th Cir. 2007) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). DISCUSSION Except for its dismissal of Plaintiffs’ procedural due process claim regarding the denial of Morgan’s request for alternative education, we see no error in the district court’s judgment. Moreover, Plaintiffs have waived all of their other claims by failing to adequately brief and argue them on appeal. I. “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of" }, { "docid": "12590151", "title": "", "text": "it has acquired secondary meaning are questions of fact. Pebble Beach Co. v. Tour 18 I Ltd., 155 F.3d 526, 537 (5th Cir.1998), abrogated on other grounds by TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 121 S.Ct. 1255, 149 L.Ed.2d 164 (2001). Nevertheless, “summary judgment may be upheld if the summary judgment record compels the conclusion that the movant is entitled to judgment as a matter of law.” Smack Apparel, 550 F.3d at 474 (citing Beef/Eater Rests., Inc. v. James Burrough Ltd., 398 F.2d 637, 639 (5th Cir.1968)). A district court’s grant of summary judgment may be affirmed “based on any rationale presented to the district court for consideration and supported by facts uncontroverted in the summary judgment record.” Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 887 (5th Cir.2002) (citing Williams v. Int’l Bhd. of Elec. Workers (In re Williams), 298 F.3d 458, 462 (5th Cir.2002); Grenier v. Med. Eng’g Corp., 243 F.3d 200, 207 (5th Cir.2001)); accord Conkling v. Turner, 18 F.3d 1285, 1296 n. 9 (5th Cir.1994) (“This court may affirm a grant of summary judgment on any appropriate ground that was raised to the district court and upon which both parties had the opportunity to introduce evidence.” (citing cases)). III. DISCUSSION In reviewing the parties’ dispute over whether summary judgment was proper in this case, we first consider the issue addressed by the district court’s opinion below — whether the Star Symbol is legally protectable as a service mark. We then evaluate whether summary judgment was appropriately granted on Amazing Spaces’s trade dress claims as well, A. The Star Symbol Trademark and service mark infringement claims are governed by the Trademark Act of 1946 (Lanham Act), 15 U.S.C. §§ 1051 et seg. There are two elements to a successful infringement claim under the Lanham Act. Smack Apparel, 550 F.3d at 474. The plaintiff must first “establish ownership in a legally protectible mark, and second, ... show in fringement by demonstrating a likelihood of confusion.” Id. (citing Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 329 (5th Cir.2008));" }, { "docid": "20305154", "title": "", "text": "theory supporting guilt. The government also argues that the allegation that defendants’ actions “affected and tended to affect index prices” was mere surplusage and not a material variance from the proof at trial. A. We review de novo the denials of defendants’ motions for judgment of acquittal under Federal Rule of Criminal Procedure 29(a). See United States v. Myers, 104 F.3d 76, 78 (5th Cir.1997). We must affirm the verdict if “a reasonable trier of fact could conclude from the evi dence that the elements of the offense were established beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict and drawing all reasonable inferences from the evidence to support the verdict.” Id. The evidence “need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.” Id. at 79 (quotations omitted). The denial of a motion for a new trial under Rule 33(a) is reviewed for an abuse of discretion. See United States v. Sipe, 388 F.3d 471, 492-93 (5th Cir.2004). To prove wire fraud, the government had to show a scheme to defraud, the use of wire communications in furtherance of the scheme, defendants’ specific intent to participate in the scheme, and materiality of defendants’ communications. See 18 U.S.C. § 1343; Neder, 527 U.S. at 25, 119 S.Ct. 1827; Stalnaker, 571 F.3d at 436; Lucas, 516 F.3d at 339. B. The evidence presented at trial was sufficient to sustain all seven counts of wire fraud upon which Valencia was convicted, as well as the sole count of wire fraud on which Singleton was convicted. Jeffrey Hornback testified extensively about a scheme at Dynegy to misstate natural gas trades in order to benefit Dynegy’s trading position. Hornback’s testimony implicated Valencia in the scheme. Valencia’s own recorded phone calls, while at times cryptic or oblique, presented evidence from which the jury could infer that Valencia knowingly and willingly participated in the scheme. Moreover, for each count on which Valencia was convicted, the government showed a communication transmitted via the wires by Valencia or at her direction to Inside" }, { "docid": "11511341", "title": "", "text": "of Enron at all relevant times. . Kean was Executive Vice President and Chief of Staff of Enron since 1999. . The complaint identifies Mark-Jusbasche as a director of Enron until August 2000. . McConnell was Executive Vice President, Technology during all relevant times. . McMahon was Chief Financial Officer of Enron Europe from 1994-July 1998, Senior Vice President, Finance and Treasurer from July 1998 to July 1999, and Executive Vice President, Finance and Treasurer of the Company from July 1999. . Metts was Executive Vice President, Corporate Development. . Sutton was Vice Chairman of Enron until early 2001. . Plaintiffs have settled with and dismissed the foreign Arthur Andersen entities. . A person violates title 18 U.S.C. § 664 if he \"embezzles, steals or unlawfully and willfully abstracts or converts to his own use or to the use of another, any of the moneys, funds, securities, ... or other assets of any ... employee pension plan ...” subject to ERISA. United States v. Wiseman, 274 F.3d 1235, 1240 (9th Cir.2001). The elements of the violation are that the defendant (1) embezzled (2) funds (3) from an employee benefit plan with (4) specific intent to deprive the plan of funds. United States v. Todd, 108 F.3d 1329, 1330 (11th Cir.1997). . The elements comprising mail and wire fraud under 18 U.S.C. § 1341 and § 1343 are (1) the defendant's participation in a scheme to defraud, which includes false or fraudulent pretenses, representations or promises; (2) the use of the mails or wire communications to execute the scheme; and (3) specific intent to defraud. United States v. Bieganowski, 313 F.3d 264, 275 (5th Cir.2002), cert. denied, _ U.S. _, 123 S.Ct. 1956, 155 L.Ed.2d 851 (2003); Chris Albritton Const. Co., Inc. v. Pitney Bowes, Inc., 304 F.3d 527, 532 (5th Cir.2002); United States v. Caldwell, 302 F.3d 399, 406 (5th Cir.2002); United States v. Odiodio, 244 F.3d 398, 402 (5th Cir.2001). The defendant must act knowingly, willfully, and with the specific intent to defraud. United States v. Richards, 204 F.3d 177, 207 (5th Cir.2000), cert. denied sub nom. Braugh v." }, { "docid": "15440783", "title": "", "text": "the defendants on all claims except those that alleged tampering with monitoring devices. The district court then dismissed certain of the tampering claims, finding they had been pled with insufficient particularity. After trial on the remaining two tampering claims, the district court entered judgment in favor of the defendants on all claims. II. We review the district court’s grant of summary judgment de novo, applying the same standards as the district court and viewing the evidence in a light favorable to the nonmoving party. Hammond v. Northland Counseling Ctr., Inc., 218 F.3d 886, 891 (8th Cir.2000). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Once the party moving for summary judgment has demonstrated that the record contains no genuine issue on a material fact, the burden is on the nonmoving party to present affirmative evidence raising a genuine issue as to that fact. Hammond, 218 F.3d at 891 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). A. Materiality The False Claims Act imposes liability on “[a]ny person who knowingly presents, or causes to be presented, to an officer or employee of the United States Government ... a false or fraudulent claim for payment or approval.” 31 U.S.C. § 3729(a). In addition, several courts have required that the falsehood in the claim must be material to the payment decision. The district court dismissed all but two of the plaintiffs’ claims for failure to present affirmative evidence raising a genuine issue of material fact regarding the materiality of the defendants’ alleged misstatements and omissions. The existence of and appropriate standard for a materiality element is a matter of some disagreement in the courts. See, e.g., United States, ex rel. Cantekin v. Univ. of Pittsburgh, 192 F.3d 402, 415-16 (3d Cir.1999) (declining to decide whether such an element exists because the claims at issue would easily qualify); United States v. Southland Mgmt. Corp., 288 F.3d 665, 674-78 (5th Cir.) (questioning existence of materiality element, but" }, { "docid": "19883238", "title": "", "text": "FCA. Regarding § 3729(a)(2), defendants argued that under United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488 (D.C.Cir.2004), a plaintiff must present evidence that a false or fraudulent claim was presented to an officer or employee of the federal government. According to defendants, Farmer could not establish that such a presentment had taken place, because HUD’s post-disbursement audit process was legally inadequate, and Farmer could point to no other potential presentment. Also regarding § 3729(a)(2), defendants — primarily HAUL — argued that Farmer had failed to proffer sufficient evidence from which a reasonable jury could conclude that there were any knowingly false statements, a fundamental scienter condition for liability under the FCA. For § 3729(a)(3), defendants argued that there was insufficient evidence from which a reasonable jury could find a conspiracy between the city and HAUL to defraud the federal government. The district court granted defendants’ respective motions for summary judgment and denied the city’s motion to dismiss as moot. Agreeing with the analysis in Tot-ten, the court concluded that § 3729(a)(2) contains a presentment requirement and that Farmer had failed to satisfy it. The court also held that Farmer had failed to produce evidence that the city and HAUL had entered into an agreement to get a false or fraudulent claim paid or approved by the federal government, so the court dismissed the § 3729(a)(3) claim with prejudice. III. We review a summary judgment de novo under Federal Rule of Civil Procedure 56. See, e.g., TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir.2002). A summary judgment will be affirmed “only if ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ when viewed in the light most favorable to the non-movant, ‘show that there is no genuine issue as to any material fact.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Though the “court must draw all justifiable inferences in favor of the non-moving party,” a genuine dispute about a material fact exists only “if the" }, { "docid": "23505548", "title": "", "text": "(S.D.N.Y.2004), aff'd sub nom., 124 Fed.Appx. 41 (2d Cir.2005). Nor has Roger offered anything more than the unadorned allegation in his complaint that \"the schemes were a regular way the enterprises did business\"; a generous review of the record does not indicate the existence of evidence to satisfy that aspect of open-ended continuity. Cf. Vicom, 20 F.3d at 784. In sum, our review of the record supports the conclusion that Roger has not satisfied the continuity prong and thus has not presented evidence of a RICO pattern sufficient to survive summary judgment on his § 1962(c) claim. This is a \"natural and commonsense\" result, given the facts alleged and our analysis of the various continuity factors. See, e.g., U.S. Textiles, 911 F.2d at 1269. As for Roger's § 1962(d) claim, he again offers only his conclusory assertion that a conspiracy must be present, because the defendants' conspiratorial intent can be shown through circumstantial evidence-namely, the fact that the defendants were present \"when illegal acts occur[red].\" This is wholly inadequate. A conspiracy to violate RICO may be shown \"by proof that the [defendant], by his words or actions, objectively manifested an agreement to participate, directly or indirectly, in the affairs of an enterprise, through the commission of two or more predicate crimes.\" United States v. Neap olitan, 791 F.2d 489, 497 (7th Cir.1986) (citation omitted); see also Gagan v. Am. Cablevision, Inc., 77 F.3d 951, 961 (7th Cir.1996). The fact that defendants may have been physically present during commission of predicate acts, without more, is insufficient to defeat summary judgment on the § 1962(d) claim (indeed, such an expansive view would transform virtually all substantive RICO violations into conspiracies). Roger steers us to no specific evidence sufficient to raise a material issue of fact on this score, nor does our review of the record reveal such evidence. The district court properly granted summary judgment on Roger’s § 1962(d) claim. C. Attorneys’Fees At last, we turn to Roger’s appeal of the district court’s order awarding attorneys’ fees. Recall that the district court granted the defendants’ motion for summary judgment in its entirety" }, { "docid": "17443710", "title": "", "text": "43 Fed.Appx. 864, 870 (6th Cir. 2002) (holding that the plan administrator was not required to offer testimony from a vocational expert as to the types of jobs plaintiff could perform given his disabilities before the plan administrator could deny his claim for long-term disability benefits); see also Burge v. Republic Engineered Prods., Inc., 432 Fed.Appx. 539, 550 (6th Cir.2011) (“Republic was also not required to consider vocational evidence, as opposed to medical evidence, in analyzing Burge’s claim.” (citing Douglas, 43 Fed.Appx. at 870)). A number of our sister circuits have reached the same conclusion. See Piepenhagen v. Old Dominion Freight Line, Inc., 395 Fed.Appx. 950, 957 (4th Cir.2010) (“Under this court’s precedents, a plan is not required as a matter of law to obtain vocational or occupational expertise in its evaluation of an employee’s claim.”); Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 251 (5th Cir.2009) (“Ample record evidence supported the Plan Administrator’s denial of benefits without the necessity of obtaining a vocational rehabilitation expert.”); Conley v. Pitney Bowes, 176 F.3d 1044, 1050 (8th Cir.1999) (noting that vocational expert testimony “is the special creature of social security, and has no relevance to Mr. Conley’s case” (internal citations omitted)); McKenzie v. Gen. Tel. Co. of Cal., 41 F.3d 1310, 1316 (9th Cir.1994), abrogated on other grounds by Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863 (9th Cir.2008) (affirming the grant of summary judgment for the insurer because the decision that the insured was not disabled and could perform other occupations was supported by substantial evidence even absent vocational evidence); Block v. Pitney Bowes Inc., 952 F.2d 1450, 1455 (D.C.Cir.1992) (Ginsburg, J.) (concluding that no provision in the plan required the plan administrator to furnish vocational evidence of the jobs for which plaintiff was fit by education, experience, capability, or training). This court’s decision in Douglas, 43 Fed.Appx. 864, is particularly instructive on this issue. Douglas claimed that he was totally disabled due to his depression, and his treating physician submitted a report to that effect. Id. at 865-66. Two independent medical examiners concluded," }, { "docid": "23051816", "title": "", "text": "required to consider the conflict whenever it exists, and to temper the abuse of discretion standard with skepticism “commensurate” with the conflict. 458 F.3d at 959, 965, 969. In considering how much or how little to temper the abuse of discretion standard in a case such as the one before us, Abatie further clarified that a district court could “consider evidence outside the administrative record” to decide the conflict’s “nature, extent, and effect on the decision-making process.” 458 F.3d at 970; see Burke v. Pitney Bowes Inc. Long-Term Disability Plan, 544 F.3d 1016, 1028 (9th Cir.2008). Accordingly, while the abuse of discretion standard generally applies in cases where plan administrators have discretionary authority to determine eligibility for benefits, the precise standard in cases where the plan administrator is also burdened by a conflict of interest is only discernable by carefully considering the conflict of interest, including evidence outside of the administrative record that bears upon it. B. The Impact of Summary Judgment The case before us arrives on a grant of summary judgment, as opposed to after bench trial or findings of fact under Fed.R.Civ.P. 52(a). In reviewing grants of summary judgment, we are generally guided by the traditional rules of summary judgment, including the requirement that summary judgment must be denied if, “viewing the evidence in the light most favorable to the non-moving party,” there are genuine issues of material fact. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir.2002). We have previously held, however, that where the abuse of discretion standard applies in an ERISA benefits denial case, “a motion for summary judgment is merely the conduit to bring the legal question before the district court and the usual tests of summary judgment, such as whether a genuine dispute of material fact exists, do not apply.” Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999). Though the Bendixen court did not provide an explicit basis or citation for that conclusion, the conclusion followed in situations where the district court’s review was limited to the administrative record and the claimant was not entitled to a jury" }, { "docid": "20134330", "title": "", "text": "to prevail on their claims, see Oja v. Howmedica, Inc., 111 F.3d 782, 792 (10th Cir.1997) (stating that “in a diversity action we examine the evidence in terms of the underlying burden of proof as dictated by state law”), we will look exclusively to federal law to determine whether plaintiffs have provided enough evidence on each of those elements to withstand summary judgment. As we discuss in the following section, this approach leads us to concur with the district court’s decision granting summary judgment for the defendants. B. Plaintiffs Failed to Provide Evidence of Gross Negligence 1. Standard of Review “This court reviews the district court’s summary judgment decision de novo, viewing the evidence in the light most favorable to the non-moving party .... ” Beardsley v. Farmland Co-Op, Inc., 530 F.3d 1309, 1313 (10th Cir.2008) (quoting Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 679-80 (10th Cir.2007)) (ellipses in original). “Summary judgment is appropriate if the record evidence shows there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1255 (10th Cir.2005) (citing Fed.R.Civ.P. 56(c)). This court will grant summary judgment for a defendant if the plaintiff fails adequately “to support one of the elements of their claim upon which they ha[ve] the burden of proof.” Jensen, 1 F.3d at 1079. A plaintiff “cannot avoid summary judgment merely by presenting a scintilla of evidence to support her claim; she must proffer facts such that a reasonable jury could find in her favor.” Turner v. Public Serv. Co. of Colo., 563 F.3d 1136, 1142 (10th Cir.2009) (citation omitted). 2. Analysis The parties agree that, under Utah law, the liability releases signed by Mr. Milne and Mr. Hall preclude the plaintiffs from bringing ordinary negligence claims against the defendants. See Pearce, 179 P.3d at 765 (stating that “people may contract away their rights to recover in tort for damages caused by the ordinary negligence of others”); see also id. at 766 (holding that “recreational activities do not constitute a public" }, { "docid": "14183269", "title": "", "text": "intent to hinder, delay, or defraud” Droomers within one year of the firm filing bankruptcy, in contravention of § 727(a)(7), thus affirming the bankruptcy court. Id. at 457. Musilli and Baumgardner timely appealed. II. “[W]e directly review the bankruptcy court’s decision rather than the district court’s review of the bankruptcy court’s decision.” Barlow v. M.J. Waterman & Assocs., Inc. (In re M.J. Waterman & Assocs., Inc.), 227 F.3d 604, 607 (6th Cir.2000) (citation omitted). Under this formulation, we “review the bankruptcy court’s conclusions of law de novo, while we review its factual findings for clear error.” Id. (citation omitted). In reviewing the bankruptcy court’s factual findings, “[a] factual finding will only be clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Rembert v. AT & T Universal Card Servs., Inc. (In re Rembert), 141 F.3d 277, 280 (6th Cir.1998) (citing United States v. Ayen, 997 F.2d 1150, 1152 (6th Cir.1993)). We review the grant of summary judgment de novo. White v. Baxter Healthcare Corp., 533 F.3d 381, 389 (6th Cir.2008); Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999) (en banc). Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The court must review all the evidence, facts, and inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Entry of summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). III. Section 523(a) of the Bankruptcy Code enumerates certain" }, { "docid": "9471917", "title": "", "text": "court that there was no just reason for delay, and the ruling on these parties and claims was made a final judgment. See Fed.R.Civ.P. 54(b). These three plaintiffs then filed a timely appeal. Chief District Judge Fitzwater’s opinion granting judgment is thorough and well-reasoned. Arrieta v. Yellow Tramp., Inc., No. 3:05-CV-2271, 2008 WL 5220569 (N.D.Tex. Dec.12, 2008) (unpublished). In our analysis, we will refer to that opinion for a more comprehensive explanation of some allegations. DISCUSSION We review a district court’s grant of summary judgment de novo and apply the same standards as the district court. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163 (5th Cir.2006). Summary judgment is proper if the pleadings and evidence show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., All U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Fed.R.Civ.P. 56(a). “We construe all facts and inferences in the light most favorable to the nonmoving party when reviewing grants of motions for summary judgment.” Murray v. Earle, 405 F.3d 278, 284 (5th Cir.2005) (citation omitted). “If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, then there is no genuine issue for trial.” Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 433 (5th Cir.2005) (quotation marks and citation omitted). Plaintiffs group their arguments of error around four of the dismissals by the district court: (A) Hernandez and Trevino’s hostile work environment claims, (B) Ketterer’s hostile work environment claim, (C) Ketterer’s retaliation claim, and (D) Hernandez’s retaliation and race discrimination claims. In response, Yellow Transportation argues that Plaintiffs at times highlight facts from the voluminous summary judgment record that were not identified for the district court and therefore were not considered in ruling on summary judgment. The argument that new material cannot be presented on appeal is a legally valid one, though we need to determine whether factually it is applicable here. A district court’s decision on summary judgment is largely controlled by" }, { "docid": "1883959", "title": "", "text": "Q: (Anderson) [Are] the newer models driving [growth in handguns] or are you still seeing the stuff you’d introduced a year’ or two ago actually growing year-over-year as well? A: (Golden) Well, the M & P was up 63%. Q: (Anderson) Okay. A: (Golden) So certainly the M & P is driving, and has been driving our growth in pistols. (Id.) As noted above, the record evidence shows that these statements are, quite simply, true. (Dkt. No. 173, Sten Decl. ¶ 36, Ex. 31.) Thus, a reasonable jury could not conclude that the September statements were false or misleading. Because Plaintiffs’ proof fails as to the first element of Count I, and because Count II is a derivative claim, Defendants’ motion for summary judgment must be allowed on both counts. 2. Scienter. Even if the record contained enough evidence to generate a disputed issue of fact regarding a material misrepresentation or omission, the absence of adequate evidence, direct or inferential, of Defendants’ culpable state of mind would, independently, be fatal to Plaintiffs’ claims. To satisfy the requirement of scienter, Plaintiffs must establish that Defendants acted with “conscious intent to defraud” or a “high degree of recklessness.” ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 58 (1st Cir.2008). The burden on Plaintiffs to show this is heavy. Recklessness means “a highly unreasonable omission, involving not merely simple, or even inexcusable, negligence, but an extreme departure from the standards of ordinary care ... Greebel v. FTP Software, Inc., 194 F.3d 185, 198 (1st Cir.1999) (citation omitted). Like materiality, “‘scienter [is a] fact-specific issue which should ordinarily be left to the trier of fact.’ ” Wells v. Monarch Capital Corp., 129 F.3d 1253 (Table), 1997 WL 693032, at *4 (1st Cir.1997) (quoting In re Apple Comp. Sec. Litig., 886 F.2d 1109, 1113 (9th Cir.1989)). However, “summary judgment is not automatically precluded even in cases where motive or intent are at issue,” and the First Circuit has granted summary judgment “based on a lack of concrete evidence that would allow for an inference of fraudulent intent.” Id. To prove scienter, Plaintiffs first" }, { "docid": "14173192", "title": "", "text": "party “must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (emphasis in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). As the Supreme Court stated in Anderson, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Indeed, “the mere existence of some alleged factual dispute between the parties” alone will not defeat a properly supported motion for summary judgment. Id. at 247-48, 106 S.Ct. 2505 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth “ ‘concrete particulars’ ” showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978)). Accordingly, it is insufficient for a party opposing summary judgment “merely to assert á conclusion without supplying supporting arguments or facts.” BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (quoting Research Automation Corp., 585 F.2d at 33). The Second Circuit has provided additional guidance regarding summary judgment motions in discrimination cases: We have sometimes noted that an extra measure of caution is merited in affirming summary judgment in a discrimination action because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions. See, e.g., Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994). Nonetheless, “summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact.” McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir.1997); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001) (“It is now beyond cavil that summary judgment" }, { "docid": "10907939", "title": "", "text": "fraudulent intent. Cf. Blake v. Dierdorff, 856 F.2d 1365, 1369-70 (9th Cir.1988) (allegations that corporate management distributed false and misleading information to protect their executive positions and substantial compensation, and to increase bonus compensation pled specific intent to commit mail fraud with the requisite particularity). The cases relied upon by Wells Fargo do not support its argument, as they involve appeals from either summary judgment or dismissals of complaints which were substantially more general and .conclu-sory than the shareholders’ in the present ease. See e.g. Apple Computer, 886 F.2d at 1117 (no genuine issue of material fact as to scienter where plaintiffs produced no evidence controverting defendants’ affidavits stating that contested statements were made in good faith); California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1469-72 (9th Cir.1987) (summary judgment record contains no evidence that defendants had the requisite intent to defraud, nor did plaintiffs’ claim make economic sense), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 699, 98 L.Ed.2d 650 (1988); Vaughn v. Teledyne, Inc., 628 F.2d 1214, 1220 (9th Cir.1980) (plaintiffs present no probative evidence relevant to the issue of intent to defraud); see also Wexner v. First Manhattan Co., 902 F.2d 169, 172-73 (2d Cir.1990) (affirming dismissal of complaint where plaintiffs failed to allege general' details of securities fraud conspiracy, how defendants knew contested statements to be false, roles of individual defendants, or how defendants stood to gain as a result); Connecticut Nat’l Bank v. Fluor Corp., 808 F.2d 957, 961-62 (2d Cir.1987) (according to facts pled, no plausible economic incentive for defendants to deceive shareholders). V The shareholders read the district court’s Order Granting Defendants’ Motion to Dismiss as holding that the shareholders failed to meet the “in connection with” requirement of a § 10(b) claim — i.e., that Wells Fargo’s alleged fraud was employed “in connection with” the purchase or sale of securities. While the shareholders’ interpretation is reasonable based on certain language in the district court’s order (e.g., the “fraud alleged must ‘touch’ upon securities transactions”) and the court’s citation to SEC v. Clark, 915 F.2d 439, 449 (9th Cir.1990)," }, { "docid": "3064469", "title": "", "text": "factual finding.” Brown v. Nucor Corp., 576 F.3d 149, 161 (4th Cir.2009). Accordingly, where a district court has granted summary judgment on the basis of laches, we review the sufficiency of the evidence in support of or in opposition to summary judgment de novo, but we review the district court’s application of laches elements to the undisputed material facts for abuse of discretion. See Pro Football, Inc. v. Harjo, 565 F.3d 880, 882 (D.C.Cir.2009) (internal citations omitted); Chattanoga Mfg. v. Nike, Inc., 301 F.3d 789, 792-93 (7th Cir.2002). In other words, “as long as the district court applies the correct legal standard on summary judgment and does not resolve disputed issues of material fact against the non-movant, its determination of whether the undisputed facts warrant an application of laches is reviewed for an abuse of discretion.” Nat’l Ass’n of Gov’t Emp. v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 707 (5th Cir.1994); see also Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 819 (7th Cir.1999) (“[I]n cases in which there is no dispute as to the material facts, the district court’s decision that laches bars the action is subject to review by the abuse of discretion standard.”) (internal citations and quotation marks omitted). Where, as here, the movant seeks summary judgment on an affirmative defense, it must conclusively establish all essential elements of that defense. See Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (defendant may prevail on a motion for summary judgment on an affirmative defense when it has produced credible evidence that would entitle it to a directed verdict if not controverted at trial). When the defendant has produced sufficient evidence in support of its affirmative defense, the burden of production shifts to the plaintiff to “come forward with specific facts showing that there is a genuine issue for trial.” Brinkley v. Harbour Recreation Club, 180 F.3d 598, 614 (4th Cir.1999) (internal citations and quotation marks omitted). However, “where the movant fails to fulfill its initial burden of providing admissible evidence of the material facts entitling" }, { "docid": "4027645", "title": "", "text": "affirm the district court's holding that Mr. Smothers was not disabled under the ADA. But at oral argument, Solvay conceded that its summary judgment arguments focused on the pretext issue without clearly contesting Mr. Smothers’ disability under subsection (A). . Congress amended this standard in the ADA Amendments Act of 2008 with the express purpose of reversing the narrow judicial interpretation of disability articulated in Sut-tonv. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), and other cases. The statute stated that prior court interpretations of the ADA had not conformed to the congressional intent. See ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553. The Amendments Act created a broader definition of disability to protect more individuals, by, inter alia, expanding what is considered a major life activity and directing courts to interpret \"substantial limitation” broadly in favor of coverage. See id. We apply the older, narrow judicial rule in Mr. Smothers’ case because he was fired before the ADA Amendments Act of 2008 became effective. See Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1144 (10th Cir.2011) (ADA Amendments Act not retroactive). . We previously have held in other cases that certain sleeping difficulties do not give rise to an inference of disability. But plaintiffs in those cases failed to produce evidence about the duration or severity of their impairments. See Johnson v. Weld Cnty., 594 F.3d 1202, 1218 n. 10 (10th Cir.2010) (lack of record evidence prevented disability determination based on plaintiffs difficulty sleeping); Humbles v. Principi, 141 Fed.Appx. 709, 712 (10th Cir.2005) (unpublished) (plaintiff who claimed to get four to five hours of sleep per night \"failed to present any evidence” of substantial limitation). Mr. Smothers' documented medical history shows his sleeping issues have been virtually intractable and limiting for years despite numerous treatment efforts. A jury could therefore reasonably conclude that his impairment is sufficiently permanent or long term to qualify as a disability. . As noted above, the older, narrow judicial rule governing the definition of disability applies in this case. Under this older rule, if" }, { "docid": "7196984", "title": "", "text": "it did in fact sign the contract. The district court concluded that Omnicare was unable to demonstrate a genuine issue of material fact as to the first element, falsity of the statement, and granted Defendants’ motion for summary judgment. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. Omnicare disputes that conclusion. It likewise takes issue with the district court’s related conclusion that Omnicare failed to establish that United and PacifiCare coordinated their Part D plans. We review the district court’s grant of summary judgment de novo, making all reasonable inferences in Omnicare’s favor. See, e.g., Tri-Gen, 433 F.3d at 1030. Omnicare contends that Stephens’s representation was literally false, or, in the alternative, that it has raised a material issue of fact as to whether United and PacifiCare pursued separate Part D strategies throughout 2006. Omnicare fails to recognize, however, that Stephens’s statement, even if false, was at best “a false statement of intent regarding future conduct rather than present or past facts.” Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 413 (7th Cir.2009). Such statements are considered “promissory fraud,” which as a general rule is “not actionable under Illinois law unless the plaintiff also proves that the act was a part of a scheme to' defraud.” Id. (quoting Ass’n Benefit Servs., Inc. v. Caremark Rx, Inc., 493 F.3d 841, 853 (7th Cir.2007)); HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 131 Ill.2d 145, 137 Ill.Dec. 19, 545 N.E.2d 672, 682 (1989). As discussed at length above, Omnicare has not put forth sufficient evidence to prove that PacifiCare and United were engaged in a scheme to defraud it, and consequently it cannot demonstrate that Stephens’s e-mail was part of any broader scheme. Thus, even if the district court was wrong in concluding that Stephens’s statement was a true response to Bien’s query, it properly prevented Omnicare’s fraud claim from moving forward. By virtue of our de novo review, we may affirm summary judgment on any basis supported in the record, Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 681 (7th Cir.2007), and we do" }, { "docid": "8368817", "title": "", "text": "as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.’ ” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis in original)). As the Supreme Court stated in Anderson, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Indeed, “the mere existence of some alleged factual dispute between the parties” alone will not defeat a properly supported motion for summary judgment. Id. at 247-48, 106 S.Ct. 2505 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth “ ‘concrete particulars’ ” showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978)). Accordingly, it is insufficient for a party opposing summary judgment “ ‘merely to assert a conclusion without supplying supporting arguments or facts.’ ” BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (quoting Research Automation Corp., 585 F.2d at 33). The Second Circuit has provided additional guidance regarding summary judgment motions in discrimination cases: We have sometimes noted that an extra measure of caution is merited in affirming summary judgment in a discrimination action because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions. See, e.g., Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994). Nonetheless, “summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact.” McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir.1997); see also Abdur-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001) (“It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination" }, { "docid": "19087872", "title": "", "text": "in HPM’s 2015 reports, and their purported reliance on a gross margin figure that is belied by their own sworn testimony, are simply without merit. By their own admission, Plaintiffs were sophisticated businessmen (or “investors,” to use their term of choice) who acquired “as is” a business that was in bankruptcy. Accordingly, and from the materials before us we conclude that the district court did not err by affirming the bankruptcy court’s entry of summary judgment in favor of Defendants on Plaintiffs’ fraud claims. Oregon RICO Claim Plaintiffs also contend that the district court should not have affirmed the bankruptcy court’s sua sponte entry of summary judgment in favor of Defendants on Plaintiffs’ Oregon RICO claim because, inter alia, Plaintiffs were not given prior notice of the court’s intent to rule on that claim. An essential element of Plaintiffs Oregon RICO claim is that Defendants defrauded them. In the light of our conclusion above, it necessarily follows that Plaintiffs’ Oregon RICO claim must also fail. See California Arch. Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1469 (9th Cir.1987) (plaintiffs’ failure to show that genuine issue of material fact existed on their fraud claim meant that summary judgment was appropriate on their RICO claim as well), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988). As for Plaintiffs’ contention that the bankruptcy court should not have entered summary judgment sua sponte, the law is clear that, while, a court may not ordinarily enter summary judgment on a claim without giving the losing party ten days’ notice and an opportunity to present new evidence, “[a] district court may grant summary judgment without notice if the losing party has had a full and fair opportunity to ventilate the issues involved in the motion.” United States v. Grayson, 879 F.2d 620, 625 (9th Cir.1989) (citations and internal quotation omitted). Because Plaintiffs had a full and fair opportunity to ventilate the issue, the district court did not err by affirming the bankruptcy court’s ruling on this issue. CROSS-APPEAL (93-35385) Dismissal of Counterclaims Defendants contend in their cross-appeal that the" } ]

[ { "docid": "10918950", "title": "", "text": "(1963). As has been frequently noted, when a party properly requests a jury trial of a non-core proceeding, an insoluble jurisdictional mess occurs in the bankruptcy court. Although, absent a jury demand, the bankruptcy judge can hear the case and recommend findings of fact and conclusions of law to the district judge for entry of judgment, that procedure is worse than useless when a jury trial is appropriately requested. The applicable provision states: “In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court ...” 28 U.S.C. § 157(c)(1) (emphasis added). If the bankruptcy judge were to impanel a jury, the judge could not enter findings of fact and conclusions of law since the jury would have made those determinations in the form of a verdict. The only way a jury trial can fit within the § 157(c)(1) procedure is if the bankruptcy judge impanels a jury, receives the verdict, submits the verdict to the district judge with a recommendation that the jury verdict be adopted and that a judgment be entered by the district judge. However, by use of this sleight of hand, one does not pay sufficient heed to the mandatory nature of the bankruptcy judge’s duty to submit his own proposed findings of fact and conclusions of law to the district court. 28 U.S.C. § 157(c)(1). The only real way that a jury trial can be conducted in the bankruptcy court while being true to the mandatory language of 28 U.S.C. § 157(c)(1), is “with the consent of all the parties to the proceeding.” § 157(c)(2). Then, the bankruptcy judge can receive the jury’s verdict and enter the judgment himself. In this case, obviously, no party has expressly consented to the holding of a jury trial in the bankruptcy court, and an objection to such procedure can fairly be read from the motions filed. Therefore, it would be unwieldy, if not illegal, for the bankruptcy court to host a jury trial of those non-core causes of action in this case which require the holding of a jury trial." } ]

[ { "docid": "14783684", "title": "", "text": "the' Seventh Amendment mandates a jury trial in a fraudulent transfer case seeking money damages. In non-core cases such as this, the applicable statute can be interpreted as prohibiting jury trials in bankruptcy courts. Section 157(c)(1) governs the trial of a non-core case. It speaks only of the findings of the bankruptcy judge, making no reference to a jury verdict, and states in part: In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected. The procedure to be followed under the statute is set forth in B.R. 9033, which is derived from Rule 72(b) F.R.Civ.P. governing objections to a recommended disposition by a magistrate. Because for reasons of practicality we conclude below that a jury trial of these adversary proceedings should not be held here, we will not pass on the power of the Court to conduct one. The statute would seem to make that power doubtful. Assuming for discussion that a bankruptcy judge may conduct a jury trial under § 157(c)(1), the jury’s verdict should have no greater effect than the fact finding of a bankruptcy judge in a bench trial. Although juries may be considered fungible, judicial powers under Article I and III certainly are not. Any verdict in the bankruptcy court would therefore be advisory only, subject to review de novo in the district court. In light of these considerations, most courts have held that jury trials in § 157(c)(1) proceedings should take place in the district court because to hold them in the bankruptcy court, assuming it has the power, would be a waste of judicial resources. See, e.g., Mohawk Industr., Inc. v. Robinson Industr., Inc., 46 B.R. 464, 466 (D.Mass.1985); George Woloch Co., Inc. v. Longview Capital Plastic Pipe, Inc. (In re George Woloch Co., Inc.), 49 B.R. 68 (E.D.Pa.1985); Mauldin v. Peoples Bank oflndianola, (In re" }, { "docid": "9971973", "title": "", "text": "Procedure under the Bankruptcy Amendments of 1984,” supra at 705. Because of this statutory language and taking into account the nature of related proceedings, this Court agrees with Bankruptcy Judge Donald E. Calhoun, Jr., who observed, “that it makes no practical sense to have a jury trial in bankruptcy court in a non-core proceeding.” In re Astrocade, Inc., supra, 79 B.R. at 991, 16 B.C.D. at 1312. Certainly, this is so if one adopts the theory that a non-core jury verdict is merely advisory. Just as the Constitution may protect a jury right, the Seventh Amendment “prohibits any reexamination of facts tried by a jury, except as permitted at common law.” In re American Community Services, Inc., 86 B.R. 681, 689 (D.Utah 1988). Even though the Utah District Court concludes that a bankruptcy court may conduct a jury trial when the parties consent, that Court recognized that the Seventh Amendment would prohibit the district court from re-conducting a second jury trial or a de novo review of the jury verdict. Id. Reserving the issue of consent, if a bankruptcy court may not conduct jury trials and yet a jury trial right exists, the answer of course is simple and offers two options —withdrawal of the reference and abstention. The reference may be withdrawn when a legitimate jury right exists to permit the district court to conduct that trial. Pied Piper Casuals, Inc., supra at 160. Section 157(d) of Title 28 provides that [t]he district court may withdraw in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown. Withdrawal of the reference could certainly be instituted by the sua sponte recommendation of the bankruptcy judge, if that judge concluded that a jury right existed in a related proceeding. See, e.g., In re Astrocade, Inc., supra at 991. After withdrawal of the reference, the district court is not compelled to conduct a jury trial. Rather, in appropriate proceedings, that court may abstain to permit a state court to conduct a jury trial. 28 U.S.C. Section" }, { "docid": "3598572", "title": "", "text": "right to a jury trial existed in an action by a bankruptcy trustee to recover a fraudulent conveyance, though this type of action is considered a core proceeding under the Bankruptcy Code. In ruling on this motion to transfer, however, we do not need to decide whether Citibank has the right to a jury trial on its claim, because we find that bankruptcy courts do have the power to conduct jury trials in core proceedings, even without the parties’ consent. After this case is transferred, the bankruptcy court can decide whether the right to a jury trial exists; if it does, the court is authorized to conduct its own jury trial, so that Citibank would not be deprived of its rights under the Seventh Amendment. Nearly all courts considering the issue have found that jury trials are inappropriate in bankruptcy courts for non-core proceedings. Some courts have reached this conclusion based on a finding that bankruptcy courts do not have the power to conduct jury trials in non-core proceedings without the parties’ consent. In re American Community Services, Inc., 86 B.R. 681, 686 (D.Utah 1988); Pied Piper Casuals v. Ins. Co. of State of Pa., 72 B.R. 156, 159-60 (S.D.N.Y.1987). Others have held that, while the power to conduct jury trials may exist in non-core proceedings, for efficiency reasons it should not be exercised without the parties’ consent. These courts have noted that conducting a jury trial in a non-core proceeding would be a tremendous waste of time and resources because the jury’s fact findings would be subject to a de novo review in the district court. See In re Smith-Douglass, Inc., 43 B.R. 616, 618 (Bkrtcy.E.D.N.C.1984); In re Towner Petroleum Co., 48 B.R. 182, 190 n. 13 (Bkrtcy.W.D.Okl.1985). The above practical limitation on conducting jury trials does not exist for core proceedings, because for these matters the jury’s findings would be subject to an ordinary review by the district court, rather than a de novo review. For core proceedings, then, the important question is whether bankruptcy courts have the power to conduct jury trials in these matters. We are" }, { "docid": "5694214", "title": "", "text": "court. There is no evidence in the legislative history that Congress intended to change the jury practices as they now are in the district courts to require a jury to make extensive findings of fact. Furthermore, the provisions for de novo review seem incompatible with the concept of a right to a jury trial. If a jury must find on all issues, then a judge cannot reverse their findings. Instead, if the district court judge decides to reject any findings of fact, it would seem that he must submit the disputed issues to yet another jury. See Matter of Reda, Inc., 60 B.R. 178, 182 (Bankr.N.D.Ill.1986); In re Shaford Companies, Inc., 52 B.R. 832, 837 (Bankr.D.N.H.1985); In re Smith-Douglass, Inc., 43 B.R. 616 (Bankr.E.D.N.C. 1984). But see In re Price-Watson Co., 15 B.C.D. 72 (Bankr.S.D.Tex.1986). Such a course would appear to waste judicial resources. Since the procedures governing non-core proceedings are antithetical to a Congressional intent to authorize jury trials in such proceedings and in the absence of any direct authorization, the Bankruptcy Court is not authorized to conduct a jury trial in this non-core proceeding. The necessity of preserving ICSP’s right to a jury trial constitutes good cause for withdrawal under 28 U.S.C. § 157(d). Pied Piper argues that the motion for withdrawal was not timely made as required under Section 157(d). The procedural history of this case indicates that ICSP has been attempting for two years to get this action withdrawn to this court on the grounds that it is a non-core proceeding. While it has now added the additional ground that a jury trial was demanded in the Bankruptcy Court, the various determinations over the past two years concerning whether this action is non-core were necessary to the present motion. The delay in obtaining determinations on its motions and appeals cannot be attributed solely to ICSP. Therefore, Pied Piper’s objection on the ground of timeliness is not persuasive. The motion to withdraw is granted. Should either party wish to submit papers on the right to a jury trial, a motion to reconsider will be entertained if filed" }, { "docid": "6344608", "title": "", "text": "submitting proposed findings of fact and conclusions of law to the district court. The district court must hear de novo any matter to which a party specifically objects, and then enter final judgment. Since the parties here have demanded and apparently are entitled to a jury trial on at least some counts of UNR’s complaint, utilizing § 157(c)(1) would mean that two jury trials may be required, which is reason enough not to make the reference. In re Smith-Douglass, Inc., 43 B.R. 616, 618 (Bkrtcy.E.D.N.C.1984). Moreover, the phrasing of § 157(c)(1) strongly suggests that Congress did not expect bankruptcy judges to utilize juries under that section, since the requirement that the bankruptcy judge enter proposed findings of fact and conclusions of law leaves essentially no role for the jury, or at least a kind of role so different from the traditional one that it would be questionable whether such a jury is really a “jury” within the meaning of the Seventh Amendment. It also must be remembered that the Seventh Amendment not only protects the right to a jury trial but protects facts found by a jury from reexamination by any court except “according to the rules of the common law” and those rules have not yet evolved to allow the kind, of de novo review required by § 157(c)(1). See also In re Long, 43 B.R. 692, 696 (Bkrtcy.N.D.Ohio 1984) (holding bankruptcy judge has no power under the 1984 Act to hold a jury trial); In re Proehl, 36 B.R. 86 (Bkrtcy.W.D.Va.1984) (interpreting Marathon as implying that allowing bankruptcy judge to conduct jury trial would be unconstitutional delegation). Therefore, a bankruptcy court cannot hold a jury trial in a case referred pursuant to § 157(c)(1) and this case, since it will require a jury, cannot be referred under that subsection. B. State Court The 1984 Act contains two abstention provisions. One applies to state law proceedings and requires abstention when a party timely requests it and (1) the action has no federal jurisdictional basis other than the fact that it is related to a title 11 proceeding, and (2)" }, { "docid": "23397377", "title": "", "text": "of core proceedings, section 157(b)(2) contains a nonexclusive list of such actions. Pursuant to 28 U.S.C. § 157(c), bankruptcy judges may also hear matters that are not core proceedings, but that are otherwise related to a case under title 11. However, bankruptcy judges may not enter final orders in these so-called “non-core” proceedings absent the consent of the parties; instead, the bankruptcy judge must submit his findings of fact and conclusions of law to the district court. The district court may enter a final order or judgment after considering the bankruptcy judge’s proposed findings and conclusions and reviewing de novo any matters to which any party objects. 28 U.S.C. § 157(c)(1) (Supp. II 1984). Section 157(d) provides that “[t]he district court may withdraw ... any case or proceeding referred under [section 157], on its own motion or on timely motion of any party, for cause shown.” 28 U.S.C. § 157(d) (Supp. II 1984). Defendants argue that I should withdraw this action from the bankruptcy court for reasons of judicial economy. They note that they are entitled to and have demanded a jury trial of all claims in the complaint, and argue that because this is a non-core proceeding, the district court might have to hold a second jury trial if any party objected to the findings of the bankruptcy court. Assuming defendants are correct in their assertion that this is a non-core proceeding, I must agree that withdrawal would be appropriate. As several courts confronted with this very situation have, observed, a jury trial in the bankruptcy court, unless with the consent of all parties, would be essentially an advisory and duplicative proceeding; it could, at most, culminate in a recommendation by the bankruptcy court to the district court for a final judgment. In re George Woloch Co., Inc., 49 B.R. 68, 70 (E.D.Pa.1985); see also, e.g., In re Belles Terres Partners, No. 85 Civ. 5355 (N.D.Ill. Sept. 12, 1985). If either side objected to the proceedings before the bankruptcy court, it might well be necessary for the district judge to conduct a second jury trial in the course of" }, { "docid": "10235748", "title": "", "text": "the seventh amendment prohibits any reexamination of facts tried by a jury, except as permitted at common law. The restrictive jury review provision of the second clause of the seventh amendment must be considered when reading 28 U.S.C. § 157(c)(1), requiring the district court to make a de novo review of all non-core proceedings heard by the bankruptcy court. The seventh amendment prohibits the district court from conducting a second jury trial and a de novo review of the jury’s verdict. It makes no practical sense to allow a bankruptcy judge to conduct a jury trial in a non-core proceeding when the bankruptcy judge lacks the ability to enter a final judgment. See 28 U.S.C. § 157(c)(1). Consequently, the seventh amendment and considerations of judicial economy require that jury trials in non-core proceedings be conducted in the district court unless the parties consent to having the bankruptcy court conduct a jury trial and enter a final judgment. After reviewing the Marathon decision and the jurisdictional scheme implemented by the 1984 Amendments in response to Marathon, this court concludes that a bankruptcy judge cannot try a jury case in a non-core proceeding absent consent by the parties. Moreover, the seventh amendment generally prohibits the reexamination of a jury’s verdict, which could inadvertent ly occur in connection with a de novo review pursuant to 28 U.S.C. § 157(c)(1). Consequently, a bankruptcy judge does not have the authority to try a jury case in a non-core proceeding without the consent of the parties. Nevertheless, Marathon and section 157(c)(2) of title 28 permits a bankruptcy judge to try a jury case in a non-core proceeding with the litigants’ consent. Most circuit courts have held that 28 U.S.C. § 636(c) of the Federal Magistrate’s Act, allowing magistrates to conduct jury trials, is a constitutional provision provided that the parties consent to a jury trial before a magistrate. Because the bankruptcy procedure regarding non-core proceedings is modeled after the Federal Magistrate’s Act, it logically follows that bankruptcy judges can constitutionally conduct jury trials in non-core proceedings with the consent of the parties. 2. Right tó a" }, { "docid": "14783685", "title": "", "text": "not pass on the power of the Court to conduct one. The statute would seem to make that power doubtful. Assuming for discussion that a bankruptcy judge may conduct a jury trial under § 157(c)(1), the jury’s verdict should have no greater effect than the fact finding of a bankruptcy judge in a bench trial. Although juries may be considered fungible, judicial powers under Article I and III certainly are not. Any verdict in the bankruptcy court would therefore be advisory only, subject to review de novo in the district court. In light of these considerations, most courts have held that jury trials in § 157(c)(1) proceedings should take place in the district court because to hold them in the bankruptcy court, assuming it has the power, would be a waste of judicial resources. See, e.g., Mohawk Industr., Inc. v. Robinson Industr., Inc., 46 B.R. 464, 466 (D.Mass.1985); George Woloch Co., Inc. v. Longview Capital Plastic Pipe, Inc. (In re George Woloch Co., Inc.), 49 B.R. 68 (E.D.Pa.1985); Mauldin v. Peoples Bank oflndianola, (In re Maudlin), 52 B.R. 838 (Bankr.N.D.Miss.1985); Pied Piper Casuals, Inc. v. Ins. Co. of State of Pennsylvania, 72 B.R. 156 (S.D.N.Y.1987); Craig v. Air Brake Controls, Inc. (In re Crabtree), 55 B.R. 130 (Bankr.E.D.Tenn.1985); Morse Elec., Inc. v. Logicon, Inc. (In re Morse Elec. Co., Inc.), 47 B.R. 234 (Bankr.N.D.Ind.1985); In re Smith-Douglass, Inc. v. Smith (In re Smith-Douglass, Inc.), 43 B.R. 616 (Bankr.E.D.N.C.1984). In Price-Watson Co. v. Amex Steel Corp., (In re Price-Watson Co.), 66 B.R. 144 (Bankr.S.D.Tex.1986) the court favored holding jury trials in the bankruptcy court. The court stressed the difference between de novo review and trial de novo, and concluded that it would be a rare case when the district court would require a second jury trial. It is of course true that B.R. 9033 does not mandate a new trial; it requires only that the district judge review those portions of the record related to a proposed finding to which an objection has been made in order to determine whether he wishes to “accept, reject or modify” the proposed finding. Any" }, { "docid": "9971972", "title": "", "text": "lies in equity in deciding the right to a jury trial.” Matter of Kenval Marketing Corp., 65 B.R. 548, 553, 15 B.C.D. 725 (E.D.Penn.1986); see also, In re Globe Parcel Service, Inc., 75 B.R. 381, 383 (E.D.Penn.1987). However, other authority asserts that the “mere advent of a bankruptcy case has deprived a party of a right to jury trial that otherwise would have existed.” King, “Jurisdiction and Procedure Under the Bankruptcy Amendments of 1984” supra at 708. If this were solely a core proceeding, this Court could conclude that no jury right existed. JURY TRIAL IN RELATED PROCEEDINGS If a litigant does validly possess a Seventh Amendment or state law right to jury trial in a related proceeding, the existence of a bankruptcy case should not abrogate that right. Nevertheless, “the jurisdictional provision for non-core proceedings by its terms envisions a bench trial rather than a trial by jury.” Pied Piper Casuals, Inc. v. Insurance Company of State of Pennsylvania, 72 B.R. 156, 159-160 (S.D.N.Y.1987), citing, 28 U.S.C. Section 157(c)(1); see also, King, “Jurisdiction and Procedure under the Bankruptcy Amendments of 1984,” supra at 705. Because of this statutory language and taking into account the nature of related proceedings, this Court agrees with Bankruptcy Judge Donald E. Calhoun, Jr., who observed, “that it makes no practical sense to have a jury trial in bankruptcy court in a non-core proceeding.” In re Astrocade, Inc., supra, 79 B.R. at 991, 16 B.C.D. at 1312. Certainly, this is so if one adopts the theory that a non-core jury verdict is merely advisory. Just as the Constitution may protect a jury right, the Seventh Amendment “prohibits any reexamination of facts tried by a jury, except as permitted at common law.” In re American Community Services, Inc., 86 B.R. 681, 689 (D.Utah 1988). Even though the Utah District Court concludes that a bankruptcy court may conduct a jury trial when the parties consent, that Court recognized that the Seventh Amendment would prohibit the district court from re-conducting a second jury trial or a de novo review of the jury verdict. Id. Reserving the issue of" }, { "docid": "2568188", "title": "", "text": "consent. See 28 U.S.C. § 157(c). If one of the parties does not consent, the bankruptcy judge submits proposed findings of fact and conclusions of law to the district court. Then the district judge enters a final order of judgment after considering the bankruptcy judge’s proposed findings and conclusions and after “reviewing de novo those matters to which any party has timely and specifically objected.” Pied Piper Casuals Inc. v. Insurance Company of the State of Pennsylvania, 72 B.R. 156, 158 (S.D.N.Y. 1987). In light of the de novo review and the potential for both the bankruptcy court and the district court to hear the same matter, the Second Circuit instructs district courts to first “evaluate whether the claim is core or non-core, since it is upon that issue that questions of efficiency and uniformity will turn. For example, the fact that a bankruptcy court’s determination on non-core matters is subject to de novo review by the district court could lead the latter to conclude that in a given case unnecessary costs could be avoided by a single proceeding in the district court.” In re Orion, 4 F.3d at 1101. “The threshold core/non-core evaluation also determines the relevance of parties’ jury trial right to deciding a motion to withdraw the reference.” Id. With respect to non-core issues, the bankruptcy court is unable to conduct jury trials without the parties’ consent. Id. (holding that the constitution prohibits bankruptcy courts from holding jury trials in non-core matters). Accordingly,”[i]f a case is non-core and a jury demand has been filed, a district court might find that the inability of the bankruptcy court to hold the trial constitutes cause to withdraw the reference.” Id.; see also Pied Piper Casuals, 72 B.R. at 159; Interconnect Telephone Services, Inc. v. Farren, 59 B.R. 397, 399 (S.D.N.Y.1986). In the present case, both parties agree that the proceeding is non-core because pre-bankruptcy petition breach of contract actions may never be considered core claims. In re Orion, 4 F.3d at 1102 (explaining that a pre-petition contract action may not be finally adjudicated by a non-Article III judge) (citing Beard" }, { "docid": "5503541", "title": "", "text": "to redecide those matters in the first instance. Id. Accordingly, we find that grave Seventh Amendment problems would arise if a jury trial is conducted by the bankruptcy court, because section 157(c)(1) requires de novo review by the district court of noncore matters. See also Gibson, Jury Trials in Bankruptcy: Obeying the Commands of Article III and the Seventh Amendment, 72 Minn.L.Rev. 967, 1043-54 (1988) (contending jury trials in noncore proceedings cannot constitutionally be presided over by bankruptcy judges). If the district courts refused to review bankruptcy court jury verdicts on noncore matters with the de novo standard, they would be acting contrary to express statutory mandate, see section 157(c)(1). Yet, if they reviewed the bankruptcy court verdicts de novo they would be at odds with the Seventh Amendment. Faced with this problem, several courts have concluded that where a jury trial is required and the parties refuse to consent to bankruptcy jurisdiction, withdrawal of the case to the district court is appropriate. See, e.g., In re Guenther, 65 B.R. 650, 652 (Bankr.D.Colo.1986); In re Northern Design, Inc, 53 B.R. 25 (Bankr.D.Vt.1985); Macon Pre-stressed Concrete Co. v. Duke, 46 B.R. 727, 730-31 (M.D.Ga.1985). See also Gibson, supra, at 1029 n. 294 (listing cases where withdrawal was deemed appropriate under such circumstances). We agree with these courts and conclude that bankruptcy courts cannot conduct jury trials on noncore matters, where the parties have not consented. VI. Conclusion Pierce has a right under the Seventh Amendment to a jury trial. ESR’s claims are noncore proceedings in which bankruptcy courts have no authorization to conduct jury trials. The district court’s decision whether cause justifies withdrawal is generally discretionary. Vreugdenhil v. Hoekstra, 773 F.2d 213, 215 (8th Cir.1985). Here, however, we find that the refusal to withdraw the referral to the bankruptcy court is an abuse of discretion. REVERSED. . The Supreme Court has granted certiorari on this issue. See Insurance Co. of State of Pennsylvania v. Ben Cooper, Inc., 896 F.2d 1394 (2d Cir.), cert. granted, — U.S.-, 110 S.Ct. 3269, 111 L.Ed.2d 779 (1990). . As noted, the Supreme Court granted certiora-ri" }, { "docid": "18782319", "title": "", "text": "expressly excluded limited class of contingent tort claims. Bernstein, supra, at p. 46. This proceeding does not concern a personal injury or wrongful death tort claim. Consequently the Court finds that it is not prohibited from conducting a jury trial in this matter. However, the Court notes that in these circumstances it would be impractical to hold a jury trial. Because this adversary proceeding is a related proceeding, the Bankruptcy Court cannot enter final judgment in the matter. 28 U.S.C. § 157(c)(1). Therefore a jury trial would lack effectiveness herein. There is no direct prohibition under the Bankruptcy Amendments and Federal Judgeship Act of 1984 against jury trials being conducted by the bankruptcy court, but the inability of bankruptcy judges to enter final judgments, absent consent of the parties, in noncore proceedings makes jury trials in such proceedings impractical. A party entitled to a jury trial should receive one, not an advisory jury trial in which proposed findings are submitted to the district court. 28 U.S.C. § 157(c)(1). In re Smith-Douglass, supra, 43 B.R. at 618, 12 B.C.D. at 427. IV. Conclusion The Court has found that, although a motion to withdraw reference should be filed in the District Court, the motion filed herein shall be construed as a motion for determination of the nature of the proceedings. The Court has also found that the underlying complaint is a related proceeding, and that the Bankruptcy Court is not prohibited from conducting a jury trial in these proceedings. Based upon these findings, the Court must now consider what action it will take in conducting the related proceeding. Once it is determined that the proceeding is related, section 157(c) of the BAA governs the course of the case. The Bankruptcy Judge may conduct the hearing or trial and submit proposed findings of fact and conclusions of law to the District Court. A party may timely object to specific determinations made by the Bankruptcy Judge. The District Court then reviews the findings and conclusions of the Bankruptcy Court and conducts a de novo review of all matters to which objections were made. The" }, { "docid": "18904067", "title": "", "text": "court would be merely advisory. A second trial by jury would be necessary in the district court if either party objects to the result proposed by this court.”); Reda, Inc. v. Harris Trust & Savings Bank (Matter of Reda, Inc.), 60 B.R. 178, 182 (Bkrtcy.N.D.Ill.1986) (“It would be impractical and make no sense in terms of judicial economy for the bankruptcy court to hold a jury trial in a non-core proceeding [a conversion matter] where the parties have not given their consent to the bankruptcy court’s exercise of jurisdiction. The likelihood of a second trial in the district court is great. The waste of time and resources in having the bankruptcy court conduct its own jury trial in such circumstances is obvious.”). Some Bankruptcy Courts hesitate to entertain jury trials over core matters unless the parties have consented. See, Eisenberg v. Guardian Group, Inc. (In re Adams, Browning & Bates, Ltd.), 70 B.R. 490, 498, 15 BCD 892, 16 CBC.2d 598 (Bkrtcy.E.D.N.Y.1987) (“If, however, the parties are unwilling to give their consent, then in the interest of judicial economy, this Court will take appropriate steps to have the reference withdrawn and the matter returned to the District Court for trial. It would impose an intolerable burden on the plaintiff-trustee and this Court to have this Court conduct a jury trial to verdict and judgment, only to have both upset on constitutional grounds, as appears not unlikely, requiring a full re-trial before a new jury in the district court.”) But see, United States Aviex Co., Inc. v. Aviex International, Inc. (In re United States Aviex Co., Inc.), 96 B.R. 874, 880, 20 CBC.2d 667 (N.D.Ind.1989) (“[T]he court notes that bankruptcy judges are not prohibited from conducting jury trials except when the proceeding involves a personal injury or wrongful death tort claim. While the court believes that the request for a jury trial indeed may be relevant in resolving a motion to withdraw reference, the court declines to dispose of the request at this time, since the ultimate trier of fact should determine whether to assemble a jury for the trial.” (footnote" }, { "docid": "18904066", "title": "", "text": "or non-ancillary “non-core non-related” matters where we are powerless to enter a final order. Our refusal to entertain a jury demand in the first situation is the exercise of our discretion to avoid a useless application of our judicial resources. Our refusal in the latter situation is the result of our lack of subject matter jurisdiction. As Bankruptcy Judge Marro so aptly stated: It would be an exercise in futility for the Bankruptcy Court to conduct a hearing [on a “non-core related” matter] solely for the purpose of submitting proposed findings and conclusions of law to the District Court only to have this hearing followed by a jury trial on the same issues. Palmisano v. Briggs (In re Northern Design, Inc.), 53 B.R. 25, 27 (Bkrtcy.D.Vt.1985). Accord, Craig v. Air Brake Controls, Inc. (In re Crabtree), 55 B.R. 130, 133 (Bkrtcy.E.D.Tenn.1985) (“Because, ab sent consent to jurisdiction of the bankruptcy court, the district court reviews de novo the proposed findings and conclusions in a non-core proceeding, a jury trial of the instant proceeding in this court would be merely advisory. A second trial by jury would be necessary in the district court if either party objects to the result proposed by this court.”); Reda, Inc. v. Harris Trust & Savings Bank (Matter of Reda, Inc.), 60 B.R. 178, 182 (Bkrtcy.N.D.Ill.1986) (“It would be impractical and make no sense in terms of judicial economy for the bankruptcy court to hold a jury trial in a non-core proceeding [a conversion matter] where the parties have not given their consent to the bankruptcy court’s exercise of jurisdiction. The likelihood of a second trial in the district court is great. The waste of time and resources in having the bankruptcy court conduct its own jury trial in such circumstances is obvious.”). Some Bankruptcy Courts hesitate to entertain jury trials over core matters unless the parties have consented. See, Eisenberg v. Guardian Group, Inc. (In re Adams, Browning & Bates, Ltd.), 70 B.R. 490, 498, 15 BCD 892, 16 CBC.2d 598 (Bkrtcy.E.D.N.Y.1987) (“If, however, the parties are unwilling to give their consent, then in the" }, { "docid": "10235747", "title": "", "text": "America, Inc. v. Instromedix, Inc., 725 F.2d 537 (9th Cir.1984) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 100, 88 L.Ed.2d 45 (1984); Wharton-Thomas v. United States, 721 F.2d 922, 925-26 (3rd Cir.1983). Moreover, a clear majority of courts hold that the Constitution does not prohibit jury trials in bankruptcy courts if a right to a jury trial exists. See In re Gaildeen Industries, Inc., 59 B.R. 402, 405-06 (N.D.Cal.1986); In the Matter of George Woloch Co., 49 B.R. 68, 69-70 (E.D.Pa.1985); In re OPM Leasing Services, 48 B.R. 824, 830 (S.D.N.Y.1985); In re Lombard-Wall, Inc., 48 B.R. 986, 992 (S.D.N.Y.1985); In re Gibbons Constr., Inc., 46 B.R. 193, 194 (E.D.Ky.1984); In re Price-Watson Co., 66 B.R. 144, 159-60 (Bankr.S.D.Tex.1986); In re Rodgers & Sons, Inc., 48 B.R. 683, 687 (Bankr.E.D.Okla.1985); In re River Transportation Co., 35 B.R. 556 (Bankr.M.D.Tenn.1983). But cf. In re Proehl, 36 B.R. 86, 87 (W.D.Va.1984); In re Brown, 56 B.R. 487, 490 (Bankr.D.Md. 1985); In re American Energy, Inc., 50 B.R. 175, 181 (Bankr.D.N.D.1985). Nevertheless, the second clause of the seventh amendment prohibits any reexamination of facts tried by a jury, except as permitted at common law. The restrictive jury review provision of the second clause of the seventh amendment must be considered when reading 28 U.S.C. § 157(c)(1), requiring the district court to make a de novo review of all non-core proceedings heard by the bankruptcy court. The seventh amendment prohibits the district court from conducting a second jury trial and a de novo review of the jury’s verdict. It makes no practical sense to allow a bankruptcy judge to conduct a jury trial in a non-core proceeding when the bankruptcy judge lacks the ability to enter a final judgment. See 28 U.S.C. § 157(c)(1). Consequently, the seventh amendment and considerations of judicial economy require that jury trials in non-core proceedings be conducted in the district court unless the parties consent to having the bankruptcy court conduct a jury trial and enter a final judgment. After reviewing the Marathon decision and the jurisdictional scheme implemented by the 1984 Amendments in response to Marathon," }, { "docid": "5503540", "title": "", "text": "find that ESR’s claims against Pierce are noncore. V. Jury Trials in Noncore Proceedings Finally, we face the issue of whether bankruptcy courts may conduct jury trials in noncore proceedings where the parties have withheld unanimous consent to the entry of final judgment by the bankruptcy court. We have already determined that Pierce has a Seventh Amendment right to trial by jury. The Seventh Amendment provides that “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law.” U.S. Const, amend. VII. The re-examination of jury findings allowed by the Seventh Amendment includes the post verdict review for sufficiency of the evidence or for a verdict against the greater weight of the evidence, which trial courts routinely conduct. Slocum v. New York Life Ins. Co., 228 U.S. 364, 379-80, 33 S.Ct. 523, 529-30, 57 L.Ed. 879 (1913). The Seventh Amendment does not allow another court’s review of facts found by the jury with no standard of deference and with the authority to redecide those matters in the first instance. Id. Accordingly, we find that grave Seventh Amendment problems would arise if a jury trial is conducted by the bankruptcy court, because section 157(c)(1) requires de novo review by the district court of noncore matters. See also Gibson, Jury Trials in Bankruptcy: Obeying the Commands of Article III and the Seventh Amendment, 72 Minn.L.Rev. 967, 1043-54 (1988) (contending jury trials in noncore proceedings cannot constitutionally be presided over by bankruptcy judges). If the district courts refused to review bankruptcy court jury verdicts on noncore matters with the de novo standard, they would be acting contrary to express statutory mandate, see section 157(c)(1). Yet, if they reviewed the bankruptcy court verdicts de novo they would be at odds with the Seventh Amendment. Faced with this problem, several courts have concluded that where a jury trial is required and the parties refuse to consent to bankruptcy jurisdiction, withdrawal of the case to the district court is appropriate. See, e.g., In re Guenther, 65 B.R. 650, 652 (Bankr.D.Colo.1986); In re" }, { "docid": "18792092", "title": "", "text": "a [non-core but] ... related” proceeding, this Court will explore, sua sponte, the question of its jurisdiction to hear and determine this proceeding. If this adversary proceeding is a “core proceeding,” then I as a Bankruptcy Judge may “hear and determine” it. 28 U.S.C. § 157(b)(1). If the proceeding is not a core proceeding but “is otherwise related to a [bankruptcy] case,” then, unless the parties to the proceeding consent to have me hear and determine it as provided in Title 28 U.S.C. § 157(c)(2), I can hear it but must “submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge ... after reviewing de novo those matters to which any party has timely and specifically objected.” 28 U.S.C. § 157(c)(1). This cumbersome and time-consuming procedure is obviously impractical for jury trials. Notwithstanding the availability of Federal Rule of Civil Procedure 49(a) (which permits the court to “require a jury to return only a special verdict in the form of a special written finding upon each issue of fact,” and which is made applicable by Bankruptcy Rule 9015(f) “when a jury trial is conducted” in bankruptcy court), findings of fact and conclusions of law are normally made only in non-jury trials. Thus, for noncore proceedings, when a jury demand has been made, and absent consent of the parties to entry of final judgment by the bankruptcy judge, considerations of judicial economy and efficiency would normally call for withdrawal of the reference so that a jury trial can be held in district court. As the court observed in In re Smith-Douglass, Inc., 43 B.R. 616, 12 B.C.D. 426, 427 (Bankr.E.D.N.C.1984): ... [t]he inability of bankruptcy judges to enter final judgments, absent consent of the parties, in noncore proceedings makes jury trials in such proceedings impractical. A party entitled to a jury trial should receive one, not an advisory jury trial in which proposed findings are submitted to' the district court. It seems likely that in this proceeding, by affirmatively alleging in their pleadings that this" }, { "docid": "3839448", "title": "", "text": "re Schear & Assoc. Inc.), 47 B.R. 544 (Bankr.S.D.Fla.1985) (action to collect account receivable is not a core proceeding). Contra Franklin Computer Corp. v. Harry Strauss & Sons, Inc., 50 B.R. 620 (Bankr.E.D.Pa.1985); Cotton v. Shirah (In re All American of Ashburn, Inc.), 49 B.R. 926 (Bankr.N.D.Ga.1985). II Section 157(c)(1) of Title 28 of the United States Code provides: (c)(1) A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11. In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected. 28 U.S.C.A. § 157(c)(1) (Supp.1985). Although this statute permits this court to hear the instant proceeding and submit proposed findings and conclusions to the district court, judicial economy dictates otherwise. Air Brake is constitutionally entitled to, and has timely demanded, Bankruptcy Rule 9015, a jury trial. U.S. Const. Amend. VII; United States v. Jenson, 90 F.Supp. 983 (D.N.J.1950). Because, absent consent to jurisdiction of the bankruptcy court, the district court reviews de novo the proposed findings and conclusions in a noncore proceeding, a jury trial of the instant proceeding in this court would be merely advisory. A second trial by jury would be necessary in the district court if either party objects to the result proposed by this court. See Mohawk Indus., Inc. v. Robinson Indus., Inc., 46 B.R. 464 (D.Mass.1985). Hence, this proceeding should be transferred to the district court. . See Bokum Resources Corp. v. Long Island Lighting Co., 49 B.R. 854 (Bankr.D.N.M.1985) for a discussion of cases involving the question whether certain proceedings are core or non-core proceedings." }, { "docid": "6344607", "title": "", "text": "interpretation. See 98 Stat. at 587 (remarks.of Senator Dole), id. at 594-96 (remarks of Senator Hatch), 130 Cong.Rec. H1848 (daily ed. March 21, 1984) (remarks of Rep. Kindness). Finally, even if the statutory language allowed it, referring this case to the bankruptcy judge for final determination would be questionable under Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), which the Seventh Circuit has interpreted as holding that “state common law causes of action cannot constitutionally be decided by a bankruptcy court.” Moody v. Amoco Oil Co., 734 F.2d 1200, 1209 (7th Cir.), cert. denied,—U.S.-, 105 S.Ct. 386, 83 L.Ed.2d 321 (1984). Of course, some of UNR’s counts are based on state statutes rather than on common law, but that makes no difference to the constitutional question. The second question is whether § 157(c)(1) authorizes the bankruptcy judge to take this ease. That section allows a bankruptcy judge to hear but not determine a related proceeding. In effect, the bankruptcy judge acts like a magistrate, submitting proposed findings of fact and conclusions of law to the district court. The district court must hear de novo any matter to which a party specifically objects, and then enter final judgment. Since the parties here have demanded and apparently are entitled to a jury trial on at least some counts of UNR’s complaint, utilizing § 157(c)(1) would mean that two jury trials may be required, which is reason enough not to make the reference. In re Smith-Douglass, Inc., 43 B.R. 616, 618 (Bkrtcy.E.D.N.C.1984). Moreover, the phrasing of § 157(c)(1) strongly suggests that Congress did not expect bankruptcy judges to utilize juries under that section, since the requirement that the bankruptcy judge enter proposed findings of fact and conclusions of law leaves essentially no role for the jury, or at least a kind of role so different from the traditional one that it would be questionable whether such a jury is really a “jury” within the meaning of the Seventh Amendment. It also must be remembered that the Seventh Amendment not only protects the" }, { "docid": "4681362", "title": "", "text": "(1) The convenience of the federal forum. The federal bankruptcy forum will not prove to be a convenient one. As the Court demonstrated above, this is a noncore matter. The Court is limited to submitting proposed findings of fact and conclusions of law to the district court. 28 U.S.C. § 157(c)(1). We may not enter a final order in this proceeding. Id. Only the district court may enter a final order, and then only after a de novo review of any matter(s) to which any party timely and specifically objects. Id. Of course, this will not be true in a state court. Moreover, the Defendant has indicated that it will demand a jury trial. Defendant’s Memorandum of Law at 11. The Court is very concerned that it would be improper for it to conduct a jury trial in a noncore matter due to the apparent conflict between the seventh amendment of the United States Constitution and section 157(c)(1). The seventh amendment states that “no fact tried by jury[ ] shall be otherwise re-examined in any Court of the United States....” U.S. Const. amend. VII. As noted above, however, section 157(c)(1) provides for a district court’s de novo review of any matter to which a party specifically and timely objects. 28 U.S.C. § 157(c)(1). Presumably, the de novo review can be of the factual determination(s) of a jury, to which a party has properly objected. It has been held that a bankruptcy judge may not constitutionally conduct a jury trial in noncore matters due to this conflict. E.g., Beard v. Braunstein, 914 F.2d 434 (3d Cir.1990); Taxel v. Electronic Sports Research (In re Cinematronics, Inc.), 916 F.2d 1444 (9th Cir.1990). Cf. Ben Cooper, 896 F.2d 1394, 1403-04 (2d Cir.1990) (holding, after analysis of certain statutes, that bankruptcy courts may constitutionally conduct jury trials in core proceedings, but possibly intimating that jury trials in noncore proceedings would be impermissible since the same analysis would be inapplicable). Even if a de novo review of the factual determinations of a jury were permissible constitutionally, the waste of judicial resources would be considerable and senseless." } ]

[ { "docid": "9727716", "title": "", "text": "follows: “THIRD: The Boxer hereby agrees to render boxing services, including training, sparring, and boxing in exhibitions and contests at such times and places as designated by the Manager. FOURTH: The Manager hereby agrees to use his best efforts to provide adequate training for the Boxer, and to secure for the Boxer, reasonably remunerative boxing contests and exhibitions against fighters of similar qualifications or skill. FIFTH: The Boxer hereby agrees not to actively participate in any sparring or boxing exhibitions, contests, or training exercises, except as specifically approved or required by the Manager. EIGHTH: It is understood and agreed by both parties that the services of the Boxer as provided herein are extraordinary and unique.” In accordance with the NYAC regulations, the contract further provides that Arias is to receive one-third of any monies earned by Solis. Arias contends that he arranged for Solis to partake in several fights throughout 1990, but Solis thereafter refused or failed to participate in the fights. Arias also contends that despite the existence of the above contract, Solis entered into a separate agreement with a boxing promoter, defendant Peltz Boxing Promotions, Inc. and J. Russell Peltz (collectively “Peltz”), for Arias to fight Calvin Grove in Philadelphia on January 8, 1991 (“the Grove Bout”). It is undisputed that Solis entered into the Grove Bout agreement with the defendants in contravention of the express terms of the Management Contract, since he did not first obtain the approval of Arias. However, Solis has agreed to pay Arias his share of the purse due under the Management Contract from the Grove Bout. Arias commenced this action seeking damages for breach of contract and a permanent injunction to enjoin Solis from participating in any exhibitions without the prior consent of Arias. In addition, Arias is suing Peltz for intentionally inducing Solis to breach his contract with Arias, and for interference by Peltz with his contractual relationship with Solis. Arias alleges that he has sustained damages by reason of the breach of contract by Solis since Arias has expended money to train Solis and in scheduling the various fights which" } ]

[ { "docid": "20914226", "title": "", "text": "fighter. CKP did not present evidence that the right to promote a champion boxer in a single bout, as distinguished from being that boxer’s exclusive promoter for all bouts, carries the same reputational benefits. The harm to CKP from Rah-man’s breach of his rematch obligations to CKP under the Addendum and the PSA is compensable in money. Accordingly, CKP’s request for injunctive relief is denied. CONCLUSION The foregoing Opinion constitutes my findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). Defendant Hasim Rahman is hereby enjoined from engaging in any heavyweight bout for the next 18 months unless and until he complies with his contractual obligation to fight a rematch with Lennox Lewis under the terms and conditions of the Provision of Services Agreement. CKP’s prayer for an injunction is denied. CKP’s claims for damages will be tried with the other legal claims in these two related cases on a date to be scheduled in October. SO ORDERED. ORDER On June 12, 2001, I granted the application of Shogun Securities Limited, d/b/a Lion Promotions to withdraw as a plaintiff in this action in order to preserve subject matter jurisdiction. Accordingly, the Clerk is directed to delete Shogun Securities Limited, d/b/a Lion Promotions from the caption. SO ORDERED. . Rahman rejected two prior offers from CKP to fight Lewis pursuant to which Rahman would receive $1 million and $1.1 million, respectively, in purse and training expenses. . On August 31, 1999, Hoffman and Rahman had entered into a form Boxer-Manager Contract drafted by the New York State Athletic Commission providing in part that \"the Boxer agrees to faithfully fulfill any contract for the rendition of boxing services, including training, entered into on his or her behalf by the Manager.” The term of that agreement is three years. . A fight card is a series of bouts in a single night that are shown as a single package. . The PSA provides that a minimum of $3.15 million be paid to CKP, who is responsible for paying Rahman’s purse. . The Ali Act defines a coercive provision as: a contract" }, { "docid": "20914209", "title": "", "text": "36 professional bouts. Prior to the loss to Rah-man, Lewis had lost only one professional fight. Lewis described the rigorous training program he undertakes to prepare for each fight, as well as the physical risks he assumes when he boxes. He testified that it was a material condition of his bout with Rahman that Rahman agree to a prompt rematch if he won the bout. Lewis wants an immediate rematch both because of his age and because he fears that other boxers will try to freeze him out of title contention. He will be 36 years old this fall. Emmanuel Steward, Lewis’ manager and trainer, was also a very credible witness. He testified that Lewis is reaching the age at which a boxer’s skills begin to diminish. Steward testified that Lewis has fought longer and more often than most heavyweight boxers, especially champions, and has suffered even more wear and tear than other boxers his age. He further testified that Lewis needs to fight three or four times a year to maintain his weight and keep his skills sharp. Because of his age and the relatively large number of fights he has fought in his amateur and professional careers, Lewis plans to retire in two years. I find that Lewis would suffer irreparable harm were he denied the opportunity to regain his championship title. It is undisputed that the heavyweight championship is the most prestigious title in professional boxing. The opportunity to fight for the heavyweight championship, and especially the opportunity to regain the championship, cannot be measured in mon ey. Because of his age, Lewis has only a limited time to regain his title and restore his reputation. Rahman, in contrast, is only 28 years old. Even if he chose not to box for 18 months, he would still have several productive years left in his career. Rahman concedes that he has a contractual obligation to fight Lewis in a rematch eventually, although he prefers to fight an interim bout. When asked if he wished to fight Lewis immediately, he said, “I don’t have a problem with it.” Shelly" }, { "docid": "11640041", "title": "", "text": "plaintiff, King Productions and King took possession of the fight’s videotapes immediately after the fight ended, and the match was not, contrary to custom, replayed on the United Center’s video screens. Id. ¶22. However, Venzor obtained an unauthorized videotape of the fight, and claims it shows that the supposed knockout punch, “if contact was made at all, was nothing more than a glancing blow.” Id. ¶23. Houk “jumped backwards in reaction to the ‘knockout’ punch and thereafter sat on the ring in the corner until the fight was over.” Id. In addition to the allegations regarding the Chavez-Houk fight, the plaintiff charges that King, King Productions, and Braverman used Houk twice before to throw fights. On January 29, 1994, Houk intentionally lost a match against Meldriek Taylor, a boxer under contract to King Productions, after Houk received a bribe; Taylor “‘needed a win’” because of an upcoming fight between Taylor and Chavez. Id. ¶ 12(a). Also, on September 4, 1994, Houk purposefully lost a fight against Gary Murray, another King Productions boxer. Id. ¶ 12(b). Based on these allegations, the complaint asserts seven counts: (1) King Productions, King, and Braverman violated 18 U.S.C. § 1962(a), by receiving income from a pattern of racketeering activity and investing or using that income in the establishment or operation of an enterprise, King Productions; (2) King, King Productions, Braverman, Chavez, and Houk violated § 1962(b) by acquiring or maintaining an interest in or control of an enterprise through a pattern of racketeering activity; (3) King, Chavez, Braverman, and Houk violated § 1962(c) by conducting or participating in the conduct of King Productions’ affairs through a pattern of racketeering activity; (4) the defendants violated § 1962(d) by conspiring to violate § 1962(a), (b), and (c); (5) King and King Productions committed promissory fraud by misrepresenting that Houk would be a serious and competitive opponent; (6) Chavez breached an agreement to promote the fight; and (7) the defendants violated the Illinois Professional Boxing and Wrestling Act, 225 ILCS 105/1-26. The defendants move to dismiss, and we now turn to their arguments. II. Standard for Reviewing Motions" }, { "docid": "9727717", "title": "", "text": "into a separate agreement with a boxing promoter, defendant Peltz Boxing Promotions, Inc. and J. Russell Peltz (collectively “Peltz”), for Arias to fight Calvin Grove in Philadelphia on January 8, 1991 (“the Grove Bout”). It is undisputed that Solis entered into the Grove Bout agreement with the defendants in contravention of the express terms of the Management Contract, since he did not first obtain the approval of Arias. However, Solis has agreed to pay Arias his share of the purse due under the Management Contract from the Grove Bout. Arias commenced this action seeking damages for breach of contract and a permanent injunction to enjoin Solis from participating in any exhibitions without the prior consent of Arias. In addition, Arias is suing Peltz for intentionally inducing Solis to breach his contract with Arias, and for interference by Peltz with his contractual relationship with Solis. Arias alleges that he has sustained damages by reason of the breach of contract by Solis since Arias has expended money to train Solis and in scheduling the various fights which Solis never fought. Arias also contends that Solis is not qualified to fight Calvin Grove; it would be detrimental to his career if he did so; and this fight would endanger the career of Solis thereby depriving Arias of income under the Management Contract. Arias bases federal jurisdiction on diversity under 28 U.S.C. § 1332(a), and claims damages of $150,000 in the complaint. The defendants oppose this application on three grounds: First, there is no diversity jurisdiction since the plaintiff has failed to meet the threshold amount of $50,000. Second, the Court lacks personal jurisdiction over the Peltz defendants. Third, the plaintiff has failed to meet the traditional elements for obtaining a preliminary injunction in this Circuit. This Court held oral argument on Friday, January 4, 1991, which argument was continued on Monday, January 7, 1991. Although the Court read this decision into the record at oral argument on January 7, 1991, the following constitutes the Court’s findings of fact and conclusions of law (see Fed.R.Civ.P. 52[a]; Weitzman v. Stein, 897 F.2d 653, 658 [2d" }, { "docid": "16129627", "title": "", "text": "It did not establish a $1 million minimum purse guarantee for all title bouts. If the boxer fought in a title bout after the three post-Tokyo fights, there was no minimum guarantee for that fight in either the original contract or the second agreement. Thus, even after the second agreement, when the court decided the case, there were still fights for which there were no minimum purse guarantees. . Although the Delaware Supreme Court has never relied upon Section 33 of the Restatement, other Delaware courts have cited it with approval. See, e.g., Independent Cellular Telephone, Inc. v. Barker, 1997 WL 153816, at *4 (Del.Ch. Mar.21, 1997); Middle States Drywall, Inc. v. DMS Properties-First, Inc., 1996 WL 453418, at *8 (Del.Super.Ct. May 28, 1996). ROSENN, Circuit Judge, dissenting. Boxing is a perennial sport, stretching from the golden days of ancient Greece to present times. The professional life of a boxer, however, is ephemeral and because of the violence of the sport, is limited to a few fleeting years. The possibility of a defeat is always imminent. Thus, a purported contract between a promoter and boxer, which permits the promoter in the event the boxer “should lose any bout” to rescind its obligation to provide any minimum purses, lays all the odds in favor of the promoter. Boxer Antwun Echols (“Echols”) and his promoter, Banner Promotions, Inc. (“Banner”) dispute the enforceability of the exclusive promotional agreement that they executed in 1999. The purported contract, drafted by Banner and governed by Delaware law, allowed Banner to retain the exclusive promotional rights to secure all professional boxing bouts for at least four years, but failed to maintain any price term following a defeat. As drafted, Echols must rely on Banner’s good will for future compensation, hoping that the promoter will renegotiate acceptable new terms on either a bout-by-bout or collective-bout basis. If the new financial terms are unacceptable to the boxer, the purported contract does not allow him to look elsewhere. In my mind, this one-sided instrument is not a legal contract. The instrument is not worthy of judicial enforcement, and I believe" }, { "docid": "16129615", "title": "", "text": "the Agreement are quite clear that Echols must continue to deal only with Banner and that Banner must continue to secure bouts for and to promote Echols for as long as the Agreement lasts. While the Delaware courts have not had the opportunity to construe an agreement of this type, there is one case from another jurisdiction that is clearly on point. In Don King Prods., Inc. v. Douglas, 742 F.Supp. 741 (S.D.N.Y.1990), the court was confronted with a nearly identical issue. A boxer argued that his agreements with a promoter were unenforceable for indefiniteness. The promotional agreement between the two parties provided $25,000 to the boxer in return for the exclusive right to promote his fights for a period of time. Compensation- for individual fights was made subject to further negotiation and agreement, with the terms to be set forth in individual bout agreements. The promotional agreement specified floor levels of compensation for all bouts except title bouts, where the purse was to be “negotiated and mutually agreed upon between [the parties].” Id. at 761. The court found that while the agreement left certain terms open to future negotiation, it was more than an agreement to agree, at least with respect to the exclusivity terms, as it was “explicit and definite about [the boxer’s] commitment to fight only for [the promoter] during the life of those contracts and about the minimum consideration he could receive for making that commitment.” Id. at 762. The fact that the agreement left open the compensation that would be payable under certain circumstances (i.e., title bouts) did not affect the essential subject matter of the agreement, as “the writing manifests in definite language ... the agreement to deal exclusively with one another with respect to title defenses and to negotiate in an effort to reach a mutual understanding as to the open price term for such a defense.” Id. Similarly, the failure to specify Echols’s purses does not affect the essential subject matter of the contract in the instant case, which is the exclusive nature of Echols’s relationship with Banner and the services that" }, { "docid": "16129614", "title": "", "text": "e to this section specifically acknowledges that price terms can be indefinite in certain situations, setting forth tests that apply to contracts for the sale of goods, and the rendition of services — which the instant contract would appear to be. The material and essential terms of the Agreement here satisfy the Restatement test. Echols breaches the contract if he deals with some entity other than Banner; if he were to breach in this manner, Banner might be entitled to injunctive relief prohibiting him from dealing with that entity and possibly money damages. Banner breaches the contract if it fails to pay the signing bonus or fails to make three bona fide offers per year; if it were to breach in this manner, Echols might be entitled to rescission and possibly money damages. More importantly, there is no breach in the event that Banner and Echols are unable to reach an agreement on a purse for a particular bout. And there is no uncertainty as to what occurs in such an event. The terms of the Agreement are quite clear that Echols must continue to deal only with Banner and that Banner must continue to secure bouts for and to promote Echols for as long as the Agreement lasts. While the Delaware courts have not had the opportunity to construe an agreement of this type, there is one case from another jurisdiction that is clearly on point. In Don King Prods., Inc. v. Douglas, 742 F.Supp. 741 (S.D.N.Y.1990), the court was confronted with a nearly identical issue. A boxer argued that his agreements with a promoter were unenforceable for indefiniteness. The promotional agreement between the two parties provided $25,000 to the boxer in return for the exclusive right to promote his fights for a period of time. Compensation- for individual fights was made subject to further negotiation and agreement, with the terms to be set forth in individual bout agreements. The promotional agreement specified floor levels of compensation for all bouts except title bouts, where the purse was to be “negotiated and mutually agreed upon between [the parties].” Id. at" }, { "docid": "20914194", "title": "", "text": "preliminary and final in-junctive relief were consolidated, and a bench trial was held on the merits of the equitable claims in both cases in accordance with Fed.R.Civ.P. 42(a) and 42(b). The damage claims in the two related cases will be tried on a date to be scheduled in October. On June 21, 2001, following closing arguments by the parties, in open court, I enjoined Rahman from engaging in any other heavyweight bout for the next 18 months unless and until he honors his contractual obligation to fight a rematch with Lewis. Although I outlined the reasons for the injunction, I said that an opinion would follow on Lewis’ claim for equitable relief and that of CKP. THE FACTS After examining all of the evidence, observing the demeanor of the witnesses who testified in the courtroom, and considering the credibility and plausibility of all the testimony, I make the following findings of fact. Since April 21, 2001, Hasim Rahman has held the heavyweight championship title of three of the four major sanctioning organizations that govern professional boxing: the World Boxing Council (“WBC”), the International Boxing Federation (“IBF”) and the International Boxing Organization (“IBO”). Another boxer, John Ruiz, holds the heavyweight title of the World Boxing Association (“WBA”). Rahman is also the “linear” champion, a term used in the industry to describe the boxer whose championship can be traced back in a straight line to a single, undisputed champion. Rahman won these titles by defeating Len-nox Lewis in a bout which took place in Johannesburg, South Africa. CKP had been the exclusive promoter of Rahman since 1995. In June of 1998, CKP and Rahman entered into an Exclusive Promotional Agreement (the “Promotional Agreement”), for a two-year term commencing on October 12, 1998, pursuant to which Rahman granted to CKP “the exclusive worldwide rights to each of the bouts” promoted during the course of the agreement. The Promotional Agreement grants CKP an irrevocable option to extend the term of the agreement for another two years upon payment of $75,000 and provides for other automatic extensions of the term. Paragraph 1(C) (the “championship provision”)" }, { "docid": "9727730", "title": "", "text": "according to Arias, in that event Solis will be “washed up”. The Court finds that Solis is a unique and extraordinary boxer and also that Arias will suffer irreparable harm if the fight with Calvin Grove goes forward on Tuesday, January 8, 1991. As Solis’ manager, Arias has determined, in his judgment that the fight ought not take place and that it would not be in the best interests of Solis’ career. Solis expressly agreed to this arrangement in the Management Contract which was approved and filed with the State Athletic Commission. The Court also finds that the plaintiff is likely to ultimately succeed on the merits of the breach of contract claim against Solis. The contract specifically states that Solis shall not engage in any matches or contests without first obtaining the approval of Arias (see Boxer-Manager Contract ¶ 5). It is undisputed that during the course of this agreement, Solis signed a contract with the Peltz defendants as promoters for the Grove Bout scheduled for January 8, 1991 in direct violation of this clause. Accordingly, the Court grants the motion of Arias for a preliminary injunction enjoining the defendant Julian Solis from participating in the bout with Calvin Grove scheduled for Tuesday, January 8, 1991. The Court must now determine the amount of security to be posted. Requirement of Posting Security. Fed.R.Civ.P. 65(c) specifically states: “(c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is wrongfully enjoined or restrained.” See also Blumenthal v. Merrill Lynch, Pierce Fenner & Smith, Inc., 910 F.2d 1049, 1054 (2d Cir.1990) (“A party has been ‘wrongfully enjoined’ under Fed.R. Civ.P. 65(c) if it is ultimately found that the enjoined party had at all times the right to do the enjoined act”). The purpose of the requirement of security is to secure indemnification for the enjoined party during the period in which a wrongfully issued injunction remains in" }, { "docid": "9727726", "title": "", "text": "talent” (Nassau Sports v. Peters, 352 F.Supp. 870, 876 [E.D.N.Y.1972] [Neaher, J.] [citations omitted] ). Here, the Court finds that Solis’ services are “unique and extraordinary”, and therefore the Court has the power to enforce the negative covenant in the Management Contract by enjoining Solis from engaging in any exhibitions or bouts without the prior approval of Arias (see Madison Square Garden Corp. v. Carnera, 52 F.2d 47 [2d Cir.1931]). Although Camera is an early decision, the facts and principles set forth therein are particularly applicable here, and the case still represents the current state of the law. In Camera, the defendant boxer entered into a written contract with Madison Square Garden (“MSG”) in which he agreed to fight the winner of the proposed “Schmeling-Stribling contest”. Camera also agreed that he would not “render services as a boxer in any major boxing contest, without the written permission of the Garden” (52 F.2d at p. 48). A “major contest” included bouts with “Sharkey, Baer, Campolo, Godfrey, or the like grade heavyweights” (id.). Thereafter, without the written permission of MSG, Camera entered into a contract to fight Sharkey, which was to take place before the conclusion of the Schmeling-Stribling contest. In upholding the District Court’s grant of a preliminary injunction preventing Camera from fighting Sharkey, the Second Circuit stated: “The District Court has found on affidavits which adequately show it that the defendant’s services are unique and extraordinary. A negative covenant in a contract for such personal services is enforceable by injunction where the damages for a breach are incapable of ascertainment. * Js # s}: * ¡fc As we have seen, the contract is valid and enforceable. It contains a restrictive covenant which may be given effect. Whether a preliminary injunction shall be issued under such circumstances rests in the sound discretion of the court” (52 F.2d at p. 49). See also Madison Square Garden Boxing, Inc. v. Shavers, 434 F.Supp. 449, 452 (S.D. N.Y.1977) (heavyweight champion preliminarily enjoined from participating in any other match for duration of contract with MSG). First, the Court notes that in this regard, the defendants" }, { "docid": "20914222", "title": "", "text": "the rematch provision, CKP has the right to receive $3.15 million, or such amounts as may be mutually agreed upon, from Lion for delivering Rahman’s services in the rematch. CKP also has the obligation to pay Rahman’s purse and expenses in the rematch. There is no express negative covenant in either the Addendum or the PSA that prohibits Rahman from fighting the rematch for another promoter, but since Rahman, as the heavyweight champion of the world, is a unique and extraordinary performer, a negative covenant is implied. Comstock, 232 N.Y.S. at 4. Moreover, Rah-man’s rematch obligation is part of a series of agreements with CKP. Injunctive Relief LEWIS Several courts have granted equitable relief to enforce negative covenants where, as here, the party to be enjoined is a unique and extraordinary boxing talent. Madison Square Garden Corp. v. Carnera, 52 F.2d 47 (2d Cir.1931); Madison Square Garden Boxing, Inc. v. Shavers, 434 F.Supp. 449 (S.D.N.Y.1977); Arias v. Solis, 754 F.Supp. 290 (S.D.N.Y.1991); but see Machen v. Johansson, 174 F.Supp. 522 (S.D.N.Y.1959). “The basic requirements to obtain injunctive relief have always been a showing of irreparable injury and the inadequacy of legal remedies.” Ticor Title Insurance Co. v. Cohen, 173 F.3d 63, 68 (2d Cir.1999). Lewis would be irreparably harmed if he were denied the opportunity to regain the championship. The value of the opportunity to regain the heavyweight championship while he still has the ability to do so cannot be measured or compensated for in money damages. In contrast, an injunction will not impose a significant burden on Rahman. Rahman concedes that he has an obligation to fight a rematch with Lewis eventually, and he testified that he does not have a problem fighting the rematch first. Moreover, the evidence at trial demonstrates that Rahman will earn several million dollars in a rematch bout. The potential harm to Lewis should injunctive relief be denied greatly outweighs the relatively minor burden the injunction imposes on Rah-man. Defendants, in their post-trial submissions, now argue that lack of mutuality precludes injunctive relief. See Lawrence v. Dixey, 119 A.D. 295, 104 N.Y.S. 516 (1st" }, { "docid": "9727725", "title": "", "text": "in violation of an existing contract, and the services are unique or extraordinary, an injunction may issue to pre vent the employee from furnishing those services to another person for the duration of the contract” (see American Broadcasting Cos., Inc. v. Wolf, 52 N.Y.2d 394, 402, 438 N.Y.S.2d 482, 486, 420 N.E.2d 363, 367 [1981] [citation omitted]; see generally 3 E. Farnsworth, Contracts § 12.5 [1990] [“A court will not, however, grant an injunction unless the remedy in damages would be inadequate. This requirement is met if the employee's services are unique or extraor-dinary_”]). Even though a contract may expressly state that the employee’s services are unique or extraordinary, as in this case, the Court is not bound by that statement, and it does not preclude the Court from making a finding to the contrary (see 67 N.Y.Jur.2d, Injunctions § 77, at p. 469 [1988] [footnote omitted]). Finally, as to the specific performance of personal services contracts involving athletes, before granting an injunction, it must be shown “that the player [is] an athlete of exceptional talent” (Nassau Sports v. Peters, 352 F.Supp. 870, 876 [E.D.N.Y.1972] [Neaher, J.] [citations omitted] ). Here, the Court finds that Solis’ services are “unique and extraordinary”, and therefore the Court has the power to enforce the negative covenant in the Management Contract by enjoining Solis from engaging in any exhibitions or bouts without the prior approval of Arias (see Madison Square Garden Corp. v. Carnera, 52 F.2d 47 [2d Cir.1931]). Although Camera is an early decision, the facts and principles set forth therein are particularly applicable here, and the case still represents the current state of the law. In Camera, the defendant boxer entered into a written contract with Madison Square Garden (“MSG”) in which he agreed to fight the winner of the proposed “Schmeling-Stribling contest”. Camera also agreed that he would not “render services as a boxer in any major boxing contest, without the written permission of the Garden” (52 F.2d at p. 48). A “major contest” included bouts with “Sharkey, Baer, Campolo, Godfrey, or the like grade heavyweights” (id.). Thereafter, without the written" }, { "docid": "20914225", "title": "", "text": "other bouts. The power to end the restriction is in his hands. CKP In most of the cases in which negative covenants have been specifically enforced, the defendant owed a continuing obligation to the plaintiff for a specific term. But see Madison Square Garden Boxing, Inc. v. Shavers, 434 F.Supp. 449. In those cases, the financial loss to the plaintiff over the term of the contract that would result from a breach was difficult to calculate. In this case, CKP’s exclusive right to promote Rahman extends to only a single fight. The loss resulting from a breach by Rahman can be measured in money. It is the percentage of Rahman’s purse that CKP would have received had it been Rahman’s promoter. Several witnesses testified credibly that, in addition to higher purses, the exclusive promoter of the heavyweight champion has access to business opportunities that other promoters do not have. The value of those business opportunities is usually incapable of ascertainment. Those opportunities generally arise in circumstance in which the promoter has continuing rights in the fighter. CKP did not present evidence that the right to promote a champion boxer in a single bout, as distinguished from being that boxer’s exclusive promoter for all bouts, carries the same reputational benefits. The harm to CKP from Rah-man’s breach of his rematch obligations to CKP under the Addendum and the PSA is compensable in money. Accordingly, CKP’s request for injunctive relief is denied. CONCLUSION The foregoing Opinion constitutes my findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). Defendant Hasim Rahman is hereby enjoined from engaging in any heavyweight bout for the next 18 months unless and until he complies with his contractual obligation to fight a rematch with Lennox Lewis under the terms and conditions of the Provision of Services Agreement. CKP’s prayer for an injunction is denied. CKP’s claims for damages will be tried with the other legal claims in these two related cases on a date to be scheduled in October. SO ORDERED. ORDER On June 12, 2001, I granted the application of Shogun Securities Limited, d/b/a Lion" }, { "docid": "20914208", "title": "", "text": "New York. King offered Rah-man an Exclusive Promotional Agreement (the “King agreement”). The King agreement promised a signing bonus to Rahman of $5 million. It also provided that Rah-man’s first bout would be against Brian Nielsen on August 4, 2001, and that his second bout would be a “unification bout” against the WBA champion. The winner of that bout would hold the heavyweight title of all four sanctioning organizations. Rahman signed the King agreement, and King gave him $200,000 in cash and a check for $4.8 million. After Rahman signed the King agreement, his opponent in the August 4, 2001 bout was changed from Nielsen to David Izon. Rahman has not yet signed a Bout Agreement to fight Izon. Lennox Lewis was an extremely credible witness. He testified that he has been a boxer since the age of 12. He fought in over 300 amateur fights before turning professional at age 23. He represented Canada in the 1984 and 1988 Olympic Games. In 1998, he won the Olympic gold medal for boxing. He has fought 36 professional bouts. Prior to the loss to Rah-man, Lewis had lost only one professional fight. Lewis described the rigorous training program he undertakes to prepare for each fight, as well as the physical risks he assumes when he boxes. He testified that it was a material condition of his bout with Rahman that Rahman agree to a prompt rematch if he won the bout. Lewis wants an immediate rematch both because of his age and because he fears that other boxers will try to freeze him out of title contention. He will be 36 years old this fall. Emmanuel Steward, Lewis’ manager and trainer, was also a very credible witness. He testified that Lewis is reaching the age at which a boxer’s skills begin to diminish. Steward testified that Lewis has fought longer and more often than most heavyweight boxers, especially champions, and has suffered even more wear and tear than other boxers his age. He further testified that Lewis needs to fight three or four times a year to maintain his weight and" }, { "docid": "20914227", "title": "", "text": "Promotions to withdraw as a plaintiff in this action in order to preserve subject matter jurisdiction. Accordingly, the Clerk is directed to delete Shogun Securities Limited, d/b/a Lion Promotions from the caption. SO ORDERED. . Rahman rejected two prior offers from CKP to fight Lewis pursuant to which Rahman would receive $1 million and $1.1 million, respectively, in purse and training expenses. . On August 31, 1999, Hoffman and Rahman had entered into a form Boxer-Manager Contract drafted by the New York State Athletic Commission providing in part that \"the Boxer agrees to faithfully fulfill any contract for the rendition of boxing services, including training, entered into on his or her behalf by the Manager.” The term of that agreement is three years. . A fight card is a series of bouts in a single night that are shown as a single package. . The PSA provides that a minimum of $3.15 million be paid to CKP, who is responsible for paying Rahman’s purse. . The Ali Act defines a coercive provision as: a contract provision that grants any rights between a boxer and a promoter, or between promoters with respect to a boxer, if the boxer is required to grant such rights, or a boxer's promoter is required to grant such rights with respect to a boxer to another promoter, as a condition precedent to the boxer’s participation in a professional boxing match against another boxer who is under contract to the promoter. 15 U.S.C. § 6307b(a)(l)(B). . Machen did not involve a right to fight to regain the heavyweight championship. Accordingly, Eddie Machen's interest in fighting a rematch with the defendant, and the harm resulting from the loss of that opportunity, were not comparable to Lewis' injury. . In Shavers, Madison Square Garden had an agreement with Eddie Shavers to fight Muhammad Ali for a guaranteed purse of $200,000. The Garden had widely marketed the fight and contracted with NBC to televise it. The court found that the harm to the Garden’s reputation and credibility if Shavers were to disavow his contract with impunity was irreparable. Id. at" }, { "docid": "20914228", "title": "", "text": "provision that grants any rights between a boxer and a promoter, or between promoters with respect to a boxer, if the boxer is required to grant such rights, or a boxer's promoter is required to grant such rights with respect to a boxer to another promoter, as a condition precedent to the boxer’s participation in a professional boxing match against another boxer who is under contract to the promoter. 15 U.S.C. § 6307b(a)(l)(B). . Machen did not involve a right to fight to regain the heavyweight championship. Accordingly, Eddie Machen's interest in fighting a rematch with the defendant, and the harm resulting from the loss of that opportunity, were not comparable to Lewis' injury. . In Shavers, Madison Square Garden had an agreement with Eddie Shavers to fight Muhammad Ali for a guaranteed purse of $200,000. The Garden had widely marketed the fight and contracted with NBC to televise it. The court found that the harm to the Garden’s reputation and credibility if Shavers were to disavow his contract with impunity was irreparable. Id. at 52. Those considerations are less significant here, where the television and marketing arrangements have yet to be made. Moreover, the Garden’s performance consisted only of paying Shaver's purse. In this case, CKP would be responsible for negotiating on Rahman's behalf for a television deal and for a higher fee from Lion. In this type oi relationship, enforcement of the negative covenant could require significant court supervision and is disfavored. See Bethlehem Engineering Export Co. v. Christie, 105 F.2d 933, 935 (2d Cir.1939) (denying specific enforcement of negative covenant where it would require “the continuous or repeated supervision of the court”)." }, { "docid": "9727729", "title": "", "text": "Arias contends that the weight limit for the Grove Bout is 130 pounds, which is above the usual limit for Solis; that the purse is too small for a fighter of Solis' stature; and, in any event, that Solis suffered an arm injury from a recent automobile accident. Significantly, however, Arias himself signed a contract on October 15, 1990 to have Solis fight the same Calvin Grove on November 13, 1990 in Baltimore, Maryland. That fight was cancelled, not by Arias, but by the Maryland State Athletic Commission (“MSAC”) on the eve of the scheduled bout since Solis failed a state-required neurological examination (see Plaintiffs Exhibit 1). The MSAC specifically found that Solis has shown “progressive and ongoing neurological damage (brain damage)” (Plaintiffs Exhibit 1). Arias alleges that even though he signed Solis to fight Grove in November 1990, he is now not fit to take part in the bout. According to Arias, if he partakes in the match and loses, he will have no chance to fight Esparragoza or other higher ranked fighters. Again according to Arias, in that event Solis will be “washed up”. The Court finds that Solis is a unique and extraordinary boxer and also that Arias will suffer irreparable harm if the fight with Calvin Grove goes forward on Tuesday, January 8, 1991. As Solis’ manager, Arias has determined, in his judgment that the fight ought not take place and that it would not be in the best interests of Solis’ career. Solis expressly agreed to this arrangement in the Management Contract which was approved and filed with the State Athletic Commission. The Court also finds that the plaintiff is likely to ultimately succeed on the merits of the breach of contract claim against Solis. The contract specifically states that Solis shall not engage in any matches or contests without first obtaining the approval of Arias (see Boxer-Manager Contract ¶ 5). It is undisputed that during the course of this agreement, Solis signed a contract with the Peltz defendants as promoters for the Grove Bout scheduled for January 8, 1991 in direct violation of this" }, { "docid": "20914214", "title": "", "text": "titles. The rematch provision contains a requirement that Rahman, should he wish to engage in an interim bout, obtain an agreement from the his opponent that, in the event that opponent wins the interim bout, he will fight Lewis in a bout promoted by Lion. Defendants contend that this requirement is unenforceable under the Ali Act and invalidates the entire rematch provision. See 15 U.S.C. § 6307b(a)(l)(A)(ii) (stating that a coercive provision is unenforceable when the other boxer under contract is also subject to a coercive provision). I need not decide whether the provision in question violates the Ali Act because there is no evidence that Rahman tried to arrange an interim bout within the time stipulated in the PSA. The question is therefore not presented. Moreover, even if the clause were unlawful, it could be severed pursuant to the severability clause in paragraph 11 of the PSA. Neither the Addendum nor the PSA contains an express negative covenant pursuant to which Rahman agreed not to fight anyone else before he fights the rematch. But, under New York law, a negative covenant will be implied where the party from whom performance is sought is a unique and extraordinary talent. Harry Rogers Theatrical Enterprises, Inc. v. Comstock, 225 A.D. 34, 232 N.Y.S. 1, 4 (1st Dep’t 1928). Rahman holds the heavyweight championship title. He is therefore both unique and extraordinary. CKP’s Claim The Promotional Agreement, on its face, expired on October 12, 2000. CKP and Rahman extended the term to April 12, 2001. Although CKP held an irrevocable option to renew the Promotional Agreement, it did not pay the $75,000 option price until April 24, two weeks after the agreement had expired. CKP nevertheless argues that it has the exclusive right to promote Rahman. Authorization for Late Payment CKP argues that Kushner exercised CKP’s renewal option during a conversation with Hoffman on or about March 20, 2001, and that Hoffman requested that Kushner wait until they returned from South Africa to pay the $75,000. Hoffman was authorized to contract on Rahman’s behalf without consultation. The Boxer-Manager Contract binds Rahman to “any" }, { "docid": "16129628", "title": "", "text": "imminent. Thus, a purported contract between a promoter and boxer, which permits the promoter in the event the boxer “should lose any bout” to rescind its obligation to provide any minimum purses, lays all the odds in favor of the promoter. Boxer Antwun Echols (“Echols”) and his promoter, Banner Promotions, Inc. (“Banner”) dispute the enforceability of the exclusive promotional agreement that they executed in 1999. The purported contract, drafted by Banner and governed by Delaware law, allowed Banner to retain the exclusive promotional rights to secure all professional boxing bouts for at least four years, but failed to maintain any price term following a defeat. As drafted, Echols must rely on Banner’s good will for future compensation, hoping that the promoter will renegotiate acceptable new terms on either a bout-by-bout or collective-bout basis. If the new financial terms are unacceptable to the boxer, the purported contract does not allow him to look elsewhere. In my mind, this one-sided instrument is not a legal contract. The instrument is not worthy of judicial enforcement, and I believe that the Delaware Supreme Court would hold it unenforceable. I therefore respectfully dissent. I. The majority acknowledges the that Delaware Courts “will not enforce a contract that is indefinite in any of its material and essential provisions.” (Maj. Op. at 278) But, the majority rationalizes that the disputed agreement “does not merely deal with a bout or a series of bouts” but with “the relationship between the two parties, a relationship in which Echols promised to fight exclusively for Banner....” (Maj. Op. at 278-279) Every contract between two parties deals with a relationship, but from the boxer’s corner, the essential ingredients of that relationship are the bout or series of bouts and the obligation of the promoter to provide a purse for the boxer. A professional fight is no mere exhibition. It is a contest for victory and money. The relationship between a promoter and a boxer is meaningless unless the boxer engages in his craft and receives appropriate compensation. Therefore, the bouts and their purses are not only relevant, but material and essential to" }, { "docid": "17321990", "title": "", "text": "Lewis to fight Holyfield. But there was no such need when the Lewis-Holyfield II contract was agreed, he contends, because the three rating organizations had mandated a Lewis-Holyfield rematch and thereby eliminated any need for Akinwande to step aside for the second fight. He therefore argues that there was no consideration for paragraph 10. But this argument too is entirely frivolous. As Lewis correctly points out, “consideration can be either benefit to the promisor or detriment to the promisee.” But in determining whether there is consideration, one must look at the entire agreement, not merely at a single paragraph. And Lewis received any number of valuable promises by DKP in exchange for his accession to the Lewis-Holyfield II agreement including, among others, Holy-field’s agreement to the fight, DKP’s agreement to use its best efforts to maintain WBC, WBA and IBF sanction of the bout as a world heavyweight championship fight, the right to have Lewis’ promoters attend all marketing meetings and have input into marketing decisions and, far from least, DKP’s payment to Lewis’ promoters of at least $15 million. Lewis’ promise next to fight the leading available contender or vacate the WBA title was part of what Lewis surrendered in exchange for these benefits. To suggest in these circumstances that Lewis received no consideration for that promise is irresponsible. Alleged Nortr-Occurrence of Condition Precedent Lewis contends also that his obligation under paragraph 10 to fight the WBA mandatory bout or vacate the title has not arisen because of the non-occurrence of a condition precedent—namely, the WBA’s failure to designate a mandatory challenger or leading available contender as required by its rules. He argues that “leading available contender” is a term of art, referring not to the highest rated available boxer on WBA’s published ratings list, but to the boxer officially designated as leading available contender by the WBA Championships Committee, who may or may not be the highest rated available boxer on the list. No such official selection, Lewis contends, ever occurred. Lewis’ argument is based on WBA Rule 9.1, which provides: “The Leading Available Contender shall be selected" } ]

[ { "docid": "22346071", "title": "", "text": "unearned insurance premiums created an “interest in property which secure [d] payment or performance of an obligation” within the meaning of Regulation Z, and thus created a “security interest” that must be disclosed under § 128 (a) (10). The Court of Appeals accordingly affirmed the judgment below. We granted certiorari to settle whether such an assignment of unearned insurance premiums must be disclosed as a “security interest” under the TILA. 449 U. S. 981 (1980). We reverse. II Although the Court of Appeals’ construction of the Act and of Regulation Z is shared by three of the four other Courts of Appeals that have ruled on the question, this view, which is essentially a claim that the plain language of the statute and the regulation requires the result reached by the court below, has recently been challenged on several fronts. First, based in part on the legislative history of the 1980 amendments to the TILA, see infra, at 218-219, the Court of Appeals for the Tenth Circuit has concluded that the meaning of the term “security interest” as used in the TILA is not so plain and has held that the creditor’s interest in unearned insurance premiums need not be disclosed as a security interest under either the statute or Regulation Z. James v. Ford Motor Credit Co., 638 F. 2d 147 (1980). Second, in September 1980, the Board, the agency that issued Regulation Z, published for comment Official Staff Interpretation FC-0173, regarding security interest disclosures in closed-end consumer credit transactions. 45 Fed. Reg. 63295. Although the staff recognized that several courts held a contrary view, its clearly expressed position was that neither § 226.2 (gg) nor § 226.8 (b) (5) requires a creditor to disclose as a security interest its right to receive insurance proceeds or unearned premiums from a property insurance policy: “The staff believes that a creditor is not required by [§ 226.8 (b)(5)] to disclose its right to receive insurance proceeds or unearned insurance premiums nor to disclose that it is named as loss payee or beneficiary on an insurance policy. Truth in Lending disclosures are" } ]

[ { "docid": "22810605", "title": "", "text": "other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,-000 or 1 per centum of the net worth of the debt collector; and (3)... the costs of the action, together with a reasonable attorney’s fee ... 15 U.S.C. § 1692k (emphasis added). Statutes like the Truth In Lending Act (TILA) include similar language, but with one crucial difference. TILA provides that “the total recovery ... in any class action or series of class actions arising out of the same failure to comply by the same creditor shall not be more than the lesser of $500,000 or 1 per centum of the net worth of the creditor.” Truth in Lending Act, 15 U.S.C. § 1640(a)(2)(B) (emphasis added); see also Electronic Fund Transfer Act, 15 U.S.C. § 1693m(a)(2)(B) (substituting “person” for “creditor”); Consumer Leasing Act, 15 U.S.C. § 1667d (incorporating 15 U.S.C. § 1640). TILA’s reference to a “series of class actions” is conspicuously absent from the FDCPA. The defendants argue that we should read the FDCPA as if the “series of class actions” language were part of the statute. This contention is based first on the circumstance that, prior to the Truth in Lending Simplification and Reform Act of 1980 (Reform Act), the damage cap provisions of TILA and the FDCPA contained identical language; neither included the “series of class actions” language. Pub.L. No. 96-221, tit. VI, Mar. 31, 1980, 94 Stat. 168. The Reform Act added the “series of class actions” language to TILA but not to the FDCPA. The defendants then argue that this amendment to TILA did not change the law; rather it clarified it. The amendment made explicit what was formerly implied. Citing Herrera v. First N. Sav. & Loan Ass’n, 805 F.2d 896, 901 (10th Cir.1986), the defendants point to the absence of any indication in the legislative history of a congressional intent to change TILA in 1980; this absence of com ment from the legislative history, they argue, suggests that the Reform Act amendment only clarified the law. The defendants then infer that Congress’ original intent in enacting" }, { "docid": "22346099", "title": "", "text": "not within its spirit, nor within the intention of its makers.” Holy Trinity Church v. United States, 143 U. S. 457, 459 (1892). See, e. g., Steelworkers v. Weber, 443 U. S. 193, 201 (1979); United Housing Foundation, Inc. v. Forman, 421 U. S. 837, 849 (1975). “When aid to construction of the meaning of words, as used in the statute [or regulation], is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’ ” United States v. American Trucking Assns., 310 U. S. 534, 543-544 (1940) (footnote omitted). In Ford Motor Credit Co. v. Milhollin, 444 U. S. 555 (1980), we stressed that the TILA seeks to provide “meaningful disclosure” of credit terms: “Meaningful disclosure does not mean more disclosure. Rather, it describes a balance between 'competing considerations of complete disclosure ... and the need to avoid . . . [informational overload].’ ” Id., at 568, quoting S. Rep. No. 96-73, p. 3 (1979) (accompanying the 1980 Act). Justice Stewart, with whom The Chief Justice, Justice Brennan, and Justice Marshall join, dissenting. The Court correctly states that the respondents in this case maintain “that the plain language of the statute and the regulation requires the result reached by the court below.” Ante, at 211-212. Yet the Court nowhere attempts a direct answer to the respondents’ contention. Despite the elementary principle that the starting point in construing a statute is the language of the statute itself, the Court simply ignores the plain language of the TILA and the equally plain language of the only applicable Federal Reserve Board construction of it. Instead, the Court contrives to discover contrary legislative intent in such dubious materials as the legislative history of a subsequent statute which does not cover the transaction at hand, a regulation issued to implement that inapplicable statute, and an unofficial administrative staff interpretation which, by its own express terms, is a mere proposal intended to have no legal effect. In my opinion, the statutory language at issue here unequivocally supports the decision of the Court of Appeals," }, { "docid": "22346107", "title": "", "text": "by invoking the Truth in Lending Simplification and Reform Act of 1980 to help it discover the meaning of the TILA, which was enacted 12 years earlier. First, the Court considers the revised sections of Regulation Z issued by the Board to implement the new statute, and in a remarkable ipse dixit, pronounces that the new definition, which excludes such “incidental interests” as liens on insurance premiums, reveals “no indication that the definition was being changed with respect to unearned premiums.” Ante, at 215. The new definition is, of course, utterly inconsistent with the earlier definition. The Court then mistakenly declares that the Board explanation for the new definition published in the Federal Register in 1981 “applies to the TILA as well as to the 1980 Act.” Ante, at 216. To compound the error, the Court goes on to examine the legislative history of the 1980 Simplification Act. There is no suggestion that the new statute applies retroactively, and there could not be. Rather, the Court states that the legislative history of the 1980 Act “fully supports the Board’s revised regulation . . . and its proposed interpretation of the unrevised regulation.” Ante, at 218 (emphasis added). Since the new regulation, issued to implement a new non-retroactive statute, cannot apply to the case at hand, I caii-not understand how it is at all relevant in this case that the new regulation is consistent with the new statute. The legislative history of the 1980 Act cited by the Court, ante, at 218-219, proves the perfectly reasonable — and irrelevant — proposition that the new Regulation Z properly construes the intent of the 1980 Act in excluding liens on unearned insurance premiums as security interests. But nothing in the Report of the Senate Committee on Banking, Housing, and Urban Affairs suggests any intent to construe the old law applicable to this case. “If the legislative history . . . indicates anything, it is that Congress thought that it was changing the law by changing the language of the Act.” United States v. Plesha, 352 U. S. 202, 208. Doubtless Congress thought the" }, { "docid": "22346108", "title": "", "text": "“fully supports the Board’s revised regulation . . . and its proposed interpretation of the unrevised regulation.” Ante, at 218 (emphasis added). Since the new regulation, issued to implement a new non-retroactive statute, cannot apply to the case at hand, I caii-not understand how it is at all relevant in this case that the new regulation is consistent with the new statute. The legislative history of the 1980 Act cited by the Court, ante, at 218-219, proves the perfectly reasonable — and irrelevant — proposition that the new Regulation Z properly construes the intent of the 1980 Act in excluding liens on unearned insurance premiums as security interests. But nothing in the Report of the Senate Committee on Banking, Housing, and Urban Affairs suggests any intent to construe the old law applicable to this case. “If the legislative history . . . indicates anything, it is that Congress thought that it was changing the law by changing the language of the Act.” United States v. Plesha, 352 U. S. 202, 208. Doubtless Congress thought the TILA deficient, but that is why it wrote a new law. The Court also cites a statement by Senator Garn purportedly attributing to the TILA a meaning contrary to its plain language. Ante, at 218-219. But the postenactment pronouncements of individual legislators purporting to construe an earlier statute have little, if any, weight in the judicial construction of the statute. E. g., Quern v. Mandley, 436 U. S. 725, 736, n. 10. And according any weight to the pronouncements of a single legislator is particularly unjustified when the legislator, like Senator Garn in this case, was not even a Member of Congress when the law was enacted. United States v. Mine Workers, 330 U. S. 258, 281-282. The Court believes that requiring disclosure of an assignment of unearned insurance premiums on the face of the credit contract would be a gratuitous “informational overload” of no significant benefit to the consumer. Ante, at 223. But when the statute and regulation governing the transaction speak unambiguously to the contrary, any independent judgment about the psychology and economics" }, { "docid": "17858953", "title": "", "text": "penalty. Hinkle v. Rock Springs Nat’l Bank, 538 F.2d at 297. A proven violation of the disclosure requirements is presumed to injure the borrower by frustrating the purpose of permitting consumers to compare various available credit terms. Dzadovsky v. Lyons Ford Sales, Inc., 593 F.2d 538, 539 (3d Cir.1979). IV Plaintiffs argue that the district court erred by awarding them only one statutory recovery of $1,000. They contend that joint and several obligors are each entitled to an award of the statutory penalty under § 1640(a)(3). However, Congress resolved the issue in 1980 when it enacted the Truth in Lending Simplification and Reform Act of 1980, Pub.L. No. 96-221, Title V, 94 Stat. 168 (1980), reprinted in 1980 U.S. Code, Cong. & Admin. News 251. This Act amended the statute to limit recovery among joint obligors to a single penalty amount. 15 U.S.C. § 1640(d) (1985). We are persuaded by the reasoning in Brown v. Marquette Sav. and Loan Ass’n, 686 F.2d 608, 615 (7th Cir.1982), that the 1980 Act should be applied here, although the transaction occurred earlier. Brown pointed out that this amendment is subject to two opposing interpretations. First, it can be argued that the Act was intended to clarify the intended meaning of the original statute. Second, it may be said that Congress intended to change the law and that the previous statute therefore meant exactly the opposite of the amended provision. Because the legislative history of the 1980 Act is silent as to the reason for the addition of a new subsection (d) to § 1640, Brown concluded that: One method of interpreting the significance of subsequent amendments to a statute takes dispute or ambiguity, such as a split in the circuits, to be an indication that a subsequent amendment is intended to clarify, rather than change, the existing law. 2A Sutherland Statutory Construction § 49.11 at 265-66. We are persuaded by this principle, and by the absence of any indication of intent to change the law in the legislative history of the 1980 Act, that a change in the law was not intended by" }, { "docid": "22346106", "title": "", "text": "public comment which the agency can evaluate and assimilate in formulating new regulations. If an agency is to infer from the Court’s opinion that its proposals may be ascribed significant or even decisive weight in litigation involving construction of the statute governing the agency, it may take any of three extremely unfortunate courses. First, an agency may decide not to issue proposals at all for fear of binding itself in future action. Second, an agency may rush to issue ill-conceived proposals in the hope of affecting the decisions of courts or the conduct of regulated persons, evading the risks and responsibilities of submitting its proposals to public comment and other rulemaking procedures. Third, an agency may frame its proposals in interrogative, rather than declarative, form, thereby denying itself the benefit of public comments that evaluate or interpret the precise language of a hypothetical final rule. The Court’s use of FC-1073 here thus threatens to undermine the very purpose of public comment in rulemaking procedures. The Court continues its attack on established principles of statutory construction by invoking the Truth in Lending Simplification and Reform Act of 1980 to help it discover the meaning of the TILA, which was enacted 12 years earlier. First, the Court considers the revised sections of Regulation Z issued by the Board to implement the new statute, and in a remarkable ipse dixit, pronounces that the new definition, which excludes such “incidental interests” as liens on insurance premiums, reveals “no indication that the definition was being changed with respect to unearned premiums.” Ante, at 215. The new definition is, of course, utterly inconsistent with the earlier definition. The Court then mistakenly declares that the Board explanation for the new definition published in the Federal Register in 1981 “applies to the TILA as well as to the 1980 Act.” Ante, at 216. To compound the error, the Court goes on to examine the legislative history of the 1980 Simplification Act. There is no suggestion that the new statute applies retroactively, and there could not be. Rather, the Court states that the legislative history of the 1980 Act" }, { "docid": "22810606", "title": "", "text": "“series of class actions” language were part of the statute. This contention is based first on the circumstance that, prior to the Truth in Lending Simplification and Reform Act of 1980 (Reform Act), the damage cap provisions of TILA and the FDCPA contained identical language; neither included the “series of class actions” language. Pub.L. No. 96-221, tit. VI, Mar. 31, 1980, 94 Stat. 168. The Reform Act added the “series of class actions” language to TILA but not to the FDCPA. The defendants then argue that this amendment to TILA did not change the law; rather it clarified it. The amendment made explicit what was formerly implied. Citing Herrera v. First N. Sav. & Loan Ass’n, 805 F.2d 896, 901 (10th Cir.1986), the defendants point to the absence of any indication in the legislative history of a congressional intent to change TILA in 1980; this absence of com ment from the legislative history, they argue, suggests that the Reform Act amendment only clarified the law. The defendants then infer that Congress’ original intent in enacting TILA was to apply the cap to a “series of class actions.” Id. (citing Brown v. Marquette Sav. & Loan Ass’n, 686 F.2d 608, 615 (7th Cir.1982)). From these premises, the defendants conclude that, since the language of TILA and the FDCPA was identical before the Reform Act, Congress’ intent in both these two acts was the same — to apply the cap to a “series of class actions.” Thus the application of the damage cap to a “series of class actions,” which appears only in the amended version of TILA, should be read back into the original version of TILA as well as (importantly for the present decision) into the original version of the FDCPA (which is still unmodified). But divining congressional intent from an absence of expression is a quagmire that we must try to avoid. The plain language of the statute ordinarily controls. Jenkins v. Heintz, 25 F.3d 536, 539 (7th Cir.1994), aff'd. 514 U.S. 291, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995) (“We must faithfully apply the law as Congress drafted" }, { "docid": "17858954", "title": "", "text": "the transaction occurred earlier. Brown pointed out that this amendment is subject to two opposing interpretations. First, it can be argued that the Act was intended to clarify the intended meaning of the original statute. Second, it may be said that Congress intended to change the law and that the previous statute therefore meant exactly the opposite of the amended provision. Because the legislative history of the 1980 Act is silent as to the reason for the addition of a new subsection (d) to § 1640, Brown concluded that: One method of interpreting the significance of subsequent amendments to a statute takes dispute or ambiguity, such as a split in the circuits, to be an indication that a subsequent amendment is intended to clarify, rather than change, the existing law. 2A Sutherland Statutory Construction § 49.11 at 265-66. We are persuaded by this principle, and by the absence of any indication of intent to change the law in the legislative history of the 1980 Act, that a change in the law was not intended by the addition of section 1640(d). We find rather that the amendment was intended to remove the dispute surrounding the interpretation of the section, and to clarify the original intent of the Congress in enacting the TILA.... We hold therefore that in light of the 1980 Act’s addition of new subsection (d), only one recovery per violation was intended to be permitted under TILA section 1640(a). We hold that the district court did not err when it allowed only one recovery of $1,000 to be divided among plaintiffs as joint obligors. V Finally, plaintiffs argue that the district court erred when it disallowed a recovery of a gross receipts tax imposed on the attorney’s fees awarded to plaintiffs. New Mexico imposes a gross receipts tax on the total amount of money received by attorneys for the performance of legal services. This tax may be passed on to their clients. N.M.Stat.Ann. § 7-9-1 (1978). Plaintiffs agreed to reimburse their attorney for the amount of this tax. Their attorney in turn included this tax in his motion to" }, { "docid": "23078568", "title": "", "text": "statutory violation. It is well settled, however, that a borrower need not have been so deceived to recover the statutory penalty. See, e.g., Smith v. Chapman, 614 F.2d 968, 971 (5th Cir. 1980); Dzadovsky v. Lyons Ford Sales, Inc., 593 F.2d 538, 539 (3d Cir. 1979). Prior to the enactment of the Truth in Lending Simplification and Reform Act of 1980 (1980 Act), 94 Stat. 168 (1980), it was the law of this circuit that an award of the statutory penalty to each joint obligor was appropriate. Mirabal v. General Motors Acceptance Corp., 537 F.2d 871, 881-83 (7th Cir. 1976). The 1980 Act amended the statute, however, to limit recovery among joint obligors to a single penalty amount. 15 U.S.C. § 1640(d) (Supp. IV 1980). We are required, therefore, to assess the impact of the 1980 Act upon the Mirabal rule, and upon the proper result in this case. In Mirabal, the court examined section 1640(a), the penalty provision of the TILA, and concluded that the statutory language “appear[ed] to indicate that Congress felt that the duty of the creditor ran to each obligor involved in a loan transaction and that for a failure to fulfill this duty each obligor could sue and recover.” 537 F.2d at 881 (footnote omitted). While the court acknowledged that such an interpretation appeared to run counter to the legislative history of the Act, id. at n.19, it concluded that the language of the section did not foreclose multiple recovery, and that a single recovery interpretation would pose practical problems. It therefore held that joint recovery would be allowed, absent “more convincing evidence that Congress intended some other result.” Id. at 883. The Mirabal holding, although in conformity with the rule in the Fifth Circuit, see, e.g., Davis v. United Companies, 551 F.2d 971 (5th Cir. 1977), was in conflict with decisions of the Fourth, Ninth, and Tenth Circuits, see, e.g., Milhollin v. Ford Motor Credit Co., 588 F.2d 753 (9th Cir. 1978), rev’d on other grounds, 444 U.S. 555, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980); Mason v. General Finance Corp., 542 F.2d 1226" }, { "docid": "23078572", "title": "", "text": "of Brennan, White, Marshall & Blackmun, JJ., concurring in part, dissenting in part) (applying 1980 Act to construe § 1639(a)(10) of the TILA). The legislative history of the 1980 Act is silent as to the reason for the addition of section 1640(d). We turn, therefore, to general principles of statutory construction, and the state of the law at the time of enactment of the 1980 Act to seek guidance as to the Congressional purpose of the new section. One method of interpreting the significance of subsequent amendments to a statute takes dispute or ambiguity, such as a split in the circuits, to be an indication that a subsequent amendment is intended to clarify, rather than change, the existing law. 2A Sutherland Statutory Construction § 49.11 at 265-66. We are persuaded by this principle, and by the absence of any indication of intent to change the law in the legislative history of the 1980 Act, that a change in the law was not intended by the addition of section 1640(d). We find rather that the amendment was intended to remove the dispute surrounding the interpretation of the section, and to clarify the original intent of the Congress in enacting the TILA. This is precisely the sort of “more convincing evidence” sought by the Mirabal court. We hold therefore that in light of the 1980 Act’s addition of new subsection (d), only one recovery per violation was intended to be permitted under TILA section 1640(a). Our decision to the contrary in Mirabal is therefore overruled to the extent it is inconsistent with this holding. The district court also awarded a $1,000 penalty for each of the two occurrences violative of the Act. While the de fendant did not raise this issue on appeal, we note that the district court’s determination on this issue was in keeping with its ruling, affirmed above, that both of the letters notifying the Browns of interest increases were new transactions under Board Interpretation 226.810(c). A separate award for each occurrence was therefore appropriate. See Dennis v. Handley, 453 F.Supp. 833, 835 (N.D.Ala.1978). In accordance with all the" }, { "docid": "23398296", "title": "", "text": "This amendment omits the reference to “a person specified in paragraph (8)(A)(i) or (ii)” and substitutes a full description of all AFDC beneficiaries and “essential persons”: “a child or relative applying for or receiving aid to families with dependent children, or any other person whose needs the State considers when determining the income of a family.” Although it is well established that subsequent legislation reflecting Congress’ “interpretation” of an earlier act is entitled to substantial weight in determining the meaning of an earlier statute, see Bell v. New Jersey, 461 U.S. 773, 784, 103 S.Ct. 2187, 2193, 76 L.Ed.2d 312 (1983); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-81, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969), the question here is whether the amendment in question is to be considered a “clarification” or a “change.” Both the case law (though this is of limited help) and postenactment statements made by two congressmen, including the chairman of the Conference Committee that considered the amendment, support the former construction. Numerous cases suggest that where, as here, there is an ambiguous statute or a “dispute or ambiguity, such as a split in the circuits, [this is] an indication that a subsequent amendment is intended to clarify, rather than change, the existing law.” Brown v. Marquette Savings & Loan Association, 686 F.2d 608, 615 (7th Cir.1982) (citing 2A C. Sands, Sutherland Statutory Construction § 49.11, at 265-66 (4th ed. 1973); cf. Anderson Bros. Ford v. Valencia, 452 U.S. 205, 101 S.Ct. 2266, 68 L.Ed.2d 783 (1981). This issue cannot be taken as settled, however, for “[a] number of cases ... have taken the contrary position, and hold that where an act is amended ... so that doubtful meaning is resolved such action constitutes evidence that the previous statute meant the exact contrary.” 2A Sutherland Statutory Construction, supra, § 49.11, at 265. Thus, statements made by Senator Dole and by Representative Rostenkowski, chairman of the Conference Committee, shortly after the passage of the Deficit Reduction Act take on added significance. They explicitly stated that the purpose of the amendment to the lump-sum provision" }, { "docid": "11503411", "title": "", "text": "prior to the enactment of the Bankruptcy Reform Act of 1994, this Court believes that its meaning was anything but clear. Therefore, we think it appropriate to consider the amendment of § 546(a) in arriving at the correct interpretation of the prior statute. Morgan Guaranty Trust Co. v. American Savings & Loan Ass’n, 804 F.2d 1487 (9th Cir.1986), Seatrain Shipbuilding, 444 U.S. at 596-97, 100 S.Ct. at 814. In looking to subsequent legislation to determine the interpretation of prior legislation, the Court must consider whether the subsequent legislation is intended to alter a prior statute or clarify its meaning. As explained by the Third Circuit Court of Appeals: Although it is well established that subsequent legislation reflecting Congress’ interpretation of an earlier act is entitled to substantial weight in determining the meaning of an earlier statute ..., the question here is whether the amendment' in question is to be considered a clarification or a change ... Numerous cases suggest that where, as here, there is an ambiguous statute or a dispute or ambiguity, such as a split in the circuits, [this is] an indication that a subsequent amendment is intended to clarify, rather than change, the existing law. This cannot be taken as settled, however, for [a] number of cases ... have taken the contrary position and hold that where an act is amended ... so that doubtful meaning is resolved such action constitutes evidence that previous statute meant the exact contrary. Barnes v. Cohen, 749 F.2d 1009, 1015 (3d Cir.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2126, 85 L.Ed.2d 490 (1985) (Internal citations omitted); In re Harry Levin, Inc., 175 B.R. 560 (Bankr.E.D.Pa.1994). In light of the fact that § 546(a)(1) was amended against a backdrop of inconsistent case law and that Congress chose to underscore the importance of a statute of limitations rather than the various roles of trustees under different chapters, this Court believes that the 1994 amendment was intended to clarify, not change, the interpretation that the two-year statute of limitations continues to run from the appointment of the first trustee, regardless of subsequent conversions" }, { "docid": "3966913", "title": "", "text": "In short, the committee believes that the interests of both consumers and creditors would be furthered by simplification and reform of the act. S.Rep. No. 96-368, 96th Cong., 2d Sess. 2 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 236, 252. The Supreme Court has voiced similar criticisms in recent years. For instance, in upholding the Federal Reserve Board’s view that the TILA does not uniformly require a lender to disclose the existence of an acceleration clause on the face of a credit agreement, the Court emphasized that, “Meaningful disclosure does not mean more disclosure. Rather, it describes a balance between ‘competing considerations of complete disclosure ... and the need to avoid ... [informational overload].’ ” Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 568, 100 S.Ct. 790, 798, 63 L.Ed.2d 22 (1980) (citations omitted) (emphasis in original); see also Ford Motor Credit Co. v. Cenance, 452 U.S. 155, 159, 101 S.Ct. 2239, 2241, 68 L.Ed.2d 744 (1981) (rejecting as “formalistic” rule requiring disclosure of credit assignee’s status as “creditor” where buyer notified of assignment of credit). This circuit, though no less guilty of rendering the “highly technical judicial decisions” criticized by those in Congress who reviewed the Simplification Act, has also spoken against the “flyspecking” that pervades TILA litigation. As Judge Brown wrote, Strict compliance does not necessarily mean punctilious compliance if, with mi nor deviations from the language described in the Act, there is still a substantial, clear disclosure of the fact or information demanded by the applicable statute or regulation. Smith v. Chapman, 614 F.2d 968, 972 (5th Cir.1980). In this case, the lender made a “substantial, clear disclosure” of the required terms. Anyone desiring to shop for credit could have easily determined the amount of the “finance charge” and the “annual percentage rate.” The thirty-day notice provision stated in the disclosure form only hurt the lender’s chances of securing the borrower’s business, it did not prevent anyone from credit shopping. In spite of the admonition in Smith v. Chapman, appellants urge punctiliousness upon us. We cannot examine only the disclosure statement with such precision; similar" }, { "docid": "23078569", "title": "", "text": "the duty of the creditor ran to each obligor involved in a loan transaction and that for a failure to fulfill this duty each obligor could sue and recover.” 537 F.2d at 881 (footnote omitted). While the court acknowledged that such an interpretation appeared to run counter to the legislative history of the Act, id. at n.19, it concluded that the language of the section did not foreclose multiple recovery, and that a single recovery interpretation would pose practical problems. It therefore held that joint recovery would be allowed, absent “more convincing evidence that Congress intended some other result.” Id. at 883. The Mirabal holding, although in conformity with the rule in the Fifth Circuit, see, e.g., Davis v. United Companies, 551 F.2d 971 (5th Cir. 1977), was in conflict with decisions of the Fourth, Ninth, and Tenth Circuits, see, e.g., Milhollin v. Ford Motor Credit Co., 588 F.2d 753 (9th Cir. 1978), rev’d on other grounds, 444 U.S. 555, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980); Mason v. General Finance Corp., 542 F.2d 1226 (4th Cir. 1976); Hinkle v. Rock Springs National Bank, 538 F.2d 295 (10th Cir. 1976), and several district courts, see, e.g., Powers v. Sims & Levin Realtors, 396 F.Supp. 12 (E.D. Va.1975), rev’d in part on other grounds, 542 F.2d 1216 (4th Cir. 1976); In re Wilson, 411 F.Supp. 751 (S.D.Ohio 1975); St. Marie v. Southland Mobile Homes, Inc., 376 F.Supp. 996 (E.D.La.1974). There was thus a split in the circuits when the 1980 Act amended the statute by inserting the explicit limitation to a single recovery. That amendment is, of course, subject to two dramatically opposed inferences. The first, urged by the defendant, is that the Act was intended to clarify the intended meaning of the original statute. The second, urged by the plaintiffs, is that the Congress intended to change the law, and that the previous statute therefore meant exactly the contrary of the amended provision. The use of subsequent legislation to infer the meaning of an act of Congress can be hazardous, but we are guided in the TIL area by a" }, { "docid": "23398297", "title": "", "text": "here, there is an ambiguous statute or a “dispute or ambiguity, such as a split in the circuits, [this is] an indication that a subsequent amendment is intended to clarify, rather than change, the existing law.” Brown v. Marquette Savings & Loan Association, 686 F.2d 608, 615 (7th Cir.1982) (citing 2A C. Sands, Sutherland Statutory Construction § 49.11, at 265-66 (4th ed. 1973); cf. Anderson Bros. Ford v. Valencia, 452 U.S. 205, 101 S.Ct. 2266, 68 L.Ed.2d 783 (1981). This issue cannot be taken as settled, however, for “[a] number of cases ... have taken the contrary position, and hold that where an act is amended ... so that doubtful meaning is resolved such action constitutes evidence that the previous statute meant the exact contrary.” 2A Sutherland Statutory Construction, supra, § 49.11, at 265. Thus, statements made by Senator Dole and by Representative Rostenkowski, chairman of the Conference Committee, shortly after the passage of the Deficit Reduction Act take on added significance. They explicitly stated that the purpose of the amendment to the lump-sum provision was to clarify the original statute in light of conflicting court decisions. See 130 Cong.Rec. S10644 (daily ed. Aug. 10, 1984) (remarks of Sen. Dole); idi at E3590 (remarks of Rep. Rostenkowski). Although statements as to legislative intent made by legislators subsequent to the enactment of a statute are typically not entitled to great weight, see United States v. United Mine Workers, 330 U.S. 258, 281-82, 67 S.Ct. 677, 690, 91 L.Ed. 884 (1947), such statements are nevertheless “entitled to consideration as an expert opinion concerning [the statute’s] proper interpretation.” 2A Sutherland Statutory Construction, supra, § 49.11, at 266; see also North Haven Board of Education v. Bell, 456 U.S. 512, 535, 102 S.Ct. 1912, 1925, 72 L.Ed.2d 299 (1982) (postenactment developments constitute “authoritative expressions concerning the scope and purpose of [the original statute]”) (quoting Cannon v. University of Chicago, 441 U.S. 677, 687 n. 7, 99 S.Ct. 1946, 1952, n. 7, 60 L.Ed.2d 560 (1979)). Such consideration would appear to tip the scales in favor of finding the amendment to be a “clarification” rather" }, { "docid": "23078571", "title": "", "text": "recent Supreme Court decision, Anderson Bros. Ford v. Valencia, 452 U.S. 205, 101 S.Ct. 2266, 68 L.Ed.2d 783 (1981), which relied on the 1980 Act and regulations promulgated under it to construe the term “security interest,” in the TILA. The Valencia Court held that when the 1980 Act and regulations pursuant to it modified the language of the TILA without indication that the new statute was intended to change the law, the new language is persuasive authority of the proper construction of the original TILA. 452 U.S. at 215-17, 101 S.Ct. at 2271-72. In such circumstances, “ ‘subsequent legislation reflecting an interpretation of an earlier Act is entitled to great weight in determining the meaning of the earlier statute.’ ” James v. Ford Motor Credit Co., 638 F.2d 147, 152 (10th Cir. 1980), vacated in part on other grounds, 453 U.S. 901, 101 S.Ct. 3134, 69 L.Ed.2d 988 (1981) (On Petition for Rehearing) (quoting Regents of the University of California v. Bakke, 438 U.S. 265, 349, 98 S.Ct. 2733, 2777, 57 L.Ed.2d 750 (1979) (Opinion of Brennan, White, Marshall & Blackmun, JJ., concurring in part, dissenting in part) (applying 1980 Act to construe § 1639(a)(10) of the TILA). The legislative history of the 1980 Act is silent as to the reason for the addition of section 1640(d). We turn, therefore, to general principles of statutory construction, and the state of the law at the time of enactment of the 1980 Act to seek guidance as to the Congressional purpose of the new section. One method of interpreting the significance of subsequent amendments to a statute takes dispute or ambiguity, such as a split in the circuits, to be an indication that a subsequent amendment is intended to clarify, rather than change, the existing law. 2A Sutherland Statutory Construction § 49.11 at 265-66. We are persuaded by this principle, and by the absence of any indication of intent to change the law in the legislative history of the 1980 Act, that a change in the law was not intended by the addition of section 1640(d). We find rather that the amendment" }, { "docid": "15010169", "title": "", "text": "U.S. 102, 117, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980) (noting “the oft-repeated warning that the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” (quotations omitted)); see also Atchison, Topeka & Santa Fe Ry. Co. v. Blanchette, 628 F.2d 1011, 1014 (7th Cir.1980) (“[T]he views of a later Congress cannot be accorded the weight of contemporary legislative history in a consideration of the intent of an earlier one.” (quotations omitted)). Second, the only indication that perhaps Congress intended to clarify USERRA or that the VBIA should have retroactive effect came in a Senate report: Subsection 302(f) of the Committee bill would clarify that the original intent of Congress was that USERRA would not be subject to a federal or state statute of limitations period and specifically states that there is no time limit for a person to file a complaint .... The application of a federal statute of limitation period under USERRA is inconsistent with the intent of Congress .... S. Rep. 11Q-M9, at 26 (2008), as reprinted in 2008 U.S.C.C.A.N. 1722, 1748^9. Although Congress used the word “clarify,” its act must also comport with other attributes of “clarifying” legislation to avoid being a substantive change in the law. We are hesitant in this case to afford that single word more weight than it deserves. The VBIA’s legislative history says nothing regarding retroactivity. That the 2008 Congress believed USERRA to be unconstrained by a statute of limitations from birth is clear, but the 2008 Congress did not state that its amendment should apply to all claims. Furthermore, Congress did not express any intent to clarify USERRA in the statute itself. We proceed with caution when Congress declares its intent to clarify a law in the legislative history rather than the amendment’s text. See Piamba Cortes, 177 F.3d at 1284 (“As a general rule, ‘[a] mere statement in a conference report of [subsequent] legislation as to what the Committee believes an earlier statute meant is obviously less weighty’ than a statement in the amendment itself.” (alterations in original) (quoting Consumer Prod. Safety" }, { "docid": "1837487", "title": "", "text": "(1960), and in this they err. In 1971 Congress amended the definition of property qualifying for the investment credit to include motion picture film, indicating in the legislative history that the prior law was intended to cover film. The Government, citing Price, argued that the legislative history of a subsequent Congress was of little value in interpreting a law enacted by a prior Congress. The Ninth Circuit firmly rejected this argument in the following words: “The government urges that this legislative history is irrelevant because the 1971 Act changed prior law, or at least that the history is entitled to little weight because ‘the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.’ United States v. Price, 361 U.S. 304, 313, 80 S. Ct. 326, 332, 4 L. Ed. 2d 334 (1960). However, although the 1971 re-enactment of the investment credit did change prior law in several ways, see, e.g., Revenue Act of 1971, Pub. L. No. 92-178, section 104(c), 85 Stat. 497, 501, it did not change the phrase ‘tangible personal property’ as used in the 1962 Act, Int. Rev. Code of 1954, section 48(a)(1)(A). And, while subsequent legislative history normally is not of controlling weight, it should not be ignored when it is clearly relevant. “In this case we give subsequent legislative history special weight, because the inferences flow not from Congressional action or inaction on amendatory legislation, but from explicit Congressional statements of the meaning of a phrase which was unchanged during the period in question. * * * [ Walt Disney Productions v. United States, 480 F.2d 66, 68, 69 (9th Cir. 1973). Citations omitted. Emphasis added.]” The case before us is clearly within this rationale. Apparently, under the majority opinion the plain rule of the invalidated regulation which Congress adopted will apply to the new progress expenditure provisions of the investment credit, but not to provisions enacted by previous Congresses. This seems anomalous since the statute and legislative history made it clear that the new provisions were carefully integrated with existing provisions, and yet two separate rules" }, { "docid": "23078570", "title": "", "text": "(4th Cir. 1976); Hinkle v. Rock Springs National Bank, 538 F.2d 295 (10th Cir. 1976), and several district courts, see, e.g., Powers v. Sims & Levin Realtors, 396 F.Supp. 12 (E.D. Va.1975), rev’d in part on other grounds, 542 F.2d 1216 (4th Cir. 1976); In re Wilson, 411 F.Supp. 751 (S.D.Ohio 1975); St. Marie v. Southland Mobile Homes, Inc., 376 F.Supp. 996 (E.D.La.1974). There was thus a split in the circuits when the 1980 Act amended the statute by inserting the explicit limitation to a single recovery. That amendment is, of course, subject to two dramatically opposed inferences. The first, urged by the defendant, is that the Act was intended to clarify the intended meaning of the original statute. The second, urged by the plaintiffs, is that the Congress intended to change the law, and that the previous statute therefore meant exactly the contrary of the amended provision. The use of subsequent legislation to infer the meaning of an act of Congress can be hazardous, but we are guided in the TIL area by a recent Supreme Court decision, Anderson Bros. Ford v. Valencia, 452 U.S. 205, 101 S.Ct. 2266, 68 L.Ed.2d 783 (1981), which relied on the 1980 Act and regulations promulgated under it to construe the term “security interest,” in the TILA. The Valencia Court held that when the 1980 Act and regulations pursuant to it modified the language of the TILA without indication that the new statute was intended to change the law, the new language is persuasive authority of the proper construction of the original TILA. 452 U.S. at 215-17, 101 S.Ct. at 2271-72. In such circumstances, “ ‘subsequent legislation reflecting an interpretation of an earlier Act is entitled to great weight in determining the meaning of the earlier statute.’ ” James v. Ford Motor Credit Co., 638 F.2d 147, 152 (10th Cir. 1980), vacated in part on other grounds, 453 U.S. 901, 101 S.Ct. 3134, 69 L.Ed.2d 988 (1981) (On Petition for Rehearing) (quoting Regents of the University of California v. Bakke, 438 U.S. 265, 349, 98 S.Ct. 2733, 2777, 57 L.Ed.2d 750 (1979) (Opinion" }, { "docid": "22346081", "title": "", "text": "108 should prevent such ludicrous interpretations by requiring merely a positive indication if a security interest is being taken in the property purchased and if it is in property not being purchased in the transaction, simply a general listing of the type of property without a listing of incidental related interests.” 125 Cong. Rec. 9160 (1979). With one exception, not pertinent here, the Committee Chairman, Senator Proxmire, who was the sponsor of the TILA, agreed with these remarks. Id., at 9159, 9972. In light of these indications from the 1980 Act’s history, it is unlikely that the courts would invalidate as contrary to the 1980 Act or the TILA either the security interest disclosure provisions with respect to unearned insurance premiums in revised Regulation Z or the interpretation of the unrevised regulation contained in FC-0173. Ill Of course, neither the legislative history of the 1980 Act nor the Board’s construction of the term “security interest” under either the TILA or the 1980 Act conclusively establishes the meaning of these words in the TILA. But as we so plainly recognized in Ford Motor Credit Co. v. Milhollin, 444 U. S. 555 (1980), absent some obvious repugnance to the statute, the Board’s regulation implementing this legislation should be accepted by the courts, as should the Board’s interpretation of its own regulation. We discern no such repugnance with any provision in the TILA. The purpose of the TILA is to promote the “informed use of credit” by consumers. 15 U. S. C. § 1601. See Ford Motor Credit Co. v. Milhollin, supra, at 559, 568; Mourning v. Family Publications Service, Inc., 411 U. S. 356, 363-368 (1973). Congress sought to assure “a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him.” 15 U. S. C. § 1601. The TILA was enacted in May 1968. As originally drafted, the House and Senate truth-in-lending bills focused primarily on the cost of credit. Neither bill required disclosure of security interests acquired by a creditor in connection with a consumer credit transaction. In" } ]

[ { "docid": "6843407", "title": "", "text": "in the police station “for so-called security reasons” and thereby “created a hazardous attitude” toward Taylor and generated disrespect for his life. Defendants moved to dismiss the complaint on the ground, inter alia, that the action is time-barred under CPLR § 215(1), which provides a one-year limitation on suits against a sheriff for acts, other than the collection of money upon an execution, performed in his official capacity. The district court concluded that § 215(1) was applicable and, since the action had not been commenced within one year of the January 1977 driving-shooting incident, granted the motion to dismiss. This appeal followed. II Section 1983 does not contain its own statute of limitations. Thus the “most appropriate” period of limitations provided by state law must be applied. Board of Regents v. Tomanio, - U.S. -, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980). Our Court traditionally has held that suits brought in federal district courts in New York under § 1983 are governed by the three-year period of limitations provided by CPLR § 214(2) for actions “to recover upon a liability, penalty or forfeiture created or imposed by statute.” Quinn v. Syracuse Model Neighborhood Corp., supra; Meyer v. Frank, 550 F.2d 726, cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977); Kaiser v. Cahn, 510 F.2d 282 (2d Cir. 1974); Ortiz v. LaVallee, 442 F.2d 912 (2d Cir. 1971); Romer v. Leary, 425 F.2d 186 (2d Cir. 1970); Swan v. Board of Higher Education, 319 F.2d 56 (2d Cir. 1963). None of these cases, however, involved actions against sheriffs or their deputies, or required consideration of the possible applicability of CPLR § 215(1) relied on below. CPLR § 215(1) provides that an action against a sheriff, coroner or constable, upon a liability incurred by him by doing an act in his official capacity or by omission of an official duty, except the nonpayment of money collected upon an" } ]

[ { "docid": "5301480", "title": "", "text": "at this point whether any such claim is pending before this Court. Even if this Court does construe such a claim to be before it now, it is this Court’s opinion that this claim is time-barred. In determining the statute of limitations applicable to a Fourteenth Amendment claim, it has been well established in this jurisdiction that one must look to the most appropriate State statute of limitations, see Fine v. City of New York, 529 F.2d 70 (2d Cir. 1975). In Fine, the Court of Appeals was presented with a comparable question to the one posed here and it remanded the action to the District Court for a determination as to whether the Fourteenth Amendment claim would be time-barred under the most appropriate state limitations period suggesting at the same time that “the one year and ninety day period of limitation provided by General Municipal Law Sec. 50 — i, governing tort claims against municipalities “might be the one most applicable” (529 F.2d at 76). In this jurisdiction it has been well established that one must look to the most appropriate state statute of limitations and that the one applicable to Section 1983 actions is the three year period for actions to recover upon a liability created by statute (New York Civil Practice Laws and Rules (CPLR) Section 214(2)), Meyer v. Frank, 550 F.2d 726, 728 (2d Cir. 1977); Kaiser v. Cahn, 510 F.2d 282, 284 (2d Cir. 1974); Rosenberg v. Martin, 478 F.2d 520, 526 (2d Cir. 1973), cert. denied, 414 U.S. 872, 94 S.Ct. 102, 38 L.Ed.2d 90; Romer v. Leary, 425 F.2d 186, 187 (2d Cir. 1970); see Swan v. Board of Education, 319 F.2d 56, 60 (2d Cir. 1963). Despite an obiter suggestion by Judge Werker in Santora v. The Civil Service Commission, City of New York, (S.D.N.Y.1977) Docket No. 76C 1695, that the controlling statute might be the six year statute contained in CPLR § 213, it seems clear to us that, as in Fine, plaintiff’s action under the Fourteenth Amendment is essentially a tort action and as such is subject to the provisions" }, { "docid": "1226351", "title": "", "text": "on their experiences in the 1978 New York apple harvest. Rios v. Altamont Farms, Inc., No. 78-6106 (Super.Ct.P.R.). Similarly, in June 1979 plaintiff Luis Alberto Rivera obtained a default judgment against New York apple defendant Merritt Hart in the Superior Court of Puerto Rico based on Rivera’s treatment during the 1978 New York apple harvest. Rivera v. Hart, No. CS-79-482 (Super.Ct.P.R.). Those prior actions bar those plaintiffs’ claim under the civil rights laws against their respective employers but not their causes of action for injunctive relief and treble damages under the antitrust laws for which the Puerto Rico state court lacked jurisdiction. See International Railways of Central America v. United Fruit Co., 373 F.2d 408, 417-19 (2d Cir.), cert. denied, 387 U.S. 921, 87 S.Ct. 2031, 18 L.Ed.2d 975 (1967); Restatement, Judgments § 62, Comment on Clause (a). E. Statute of'Limitations The New York apple defendants also move to dismiss certain claims on the ground that they are barred by the statute of limitations. The original complaint was filed on October 22, 1979. The four year statute of limitations applicable to plaintiffs’ antitrust claim against the New York apple defendants would therefore preclude recovery for damages suffered during the 1975 apple harvest season, or that portion of the harvest that preceded October 22, 1975. 15 U.S.C. § 15b. As to plaintiffs’ civil rights claim, the applicable limitation period is the three year period provided by New York Civ. Prac.Law and Rules § 214(2). Taylor v. Mayone, 626 F.2d 247, 250-51 & n.4 (2d Cir. 1980); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980); Meyer v. Frank, 550 F.2d 726, 728 n.5 (2d Cir.), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977). The three year statute of limitations precludes recovery on plaintiffs’ civil rights claim for the entire 1975 apple harvest and for that portion of the 1976 season that preceded October 22, 1976. F. Farm Labor Executive Committee The Farm Labor Executive Committee (“FLEC”), an unincorporated committee composed- of apple grower organizations in various eastern states and sued herein as one" }, { "docid": "22348000", "title": "", "text": "95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). In Regan v. Sullivan, 557 F.2d 300 (2d Cir. 1977), this Court held that the most appropriate statute for a Bivens action accruing in New York is either the three-year limitation provided by CPLR § 214(2) for an action to recover upon a liability imposed by statute, or the six-year limitation provided by CPLR § 213(1) for actions for which no limitation is specifically prescribed. In Re-gan we had no need to determine which of the two periods was the more appropriate because the action was barred under either statute. The same is true here. Since Le-onhard’s causes of action accrued no later than 1970, i. e., more than six years before the June 1978 commencement of this suit, the suit is barred. B. The State Defendants Leonhard’s complaint challenges only a single act by the state defendants: that they released Pascal Calabrese from custody prior to the date authorized by law. While the complaint is far from clear in this respect, it may be construed to allege that the release of Calabrese in 1968 violated Leonhard’s constitutional rights and to seek relief under § 1983. As to § 1983 actions, like Bivens-type actions, Congress has not specified a statute of limitations, and again we must look to state law. With respect to § 1983 actions brought in federal district courts in New York, this Court has repeatedly held that the appropriate period is the three-year limitation of CPLR § 214(2). Taylor v. Mayone, 626 F.2d 247 (2d Cir. 1980); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980); Leigh v. McGuire, 613 F.2d 380 (2d Cir. 1979), vacated and remanded for further consideration, — U.S. —, 100 S.Ct. 2935, 64 L.Ed.2d 820 (1980); Meyer v. Frank, 550 F.2d 726 (2d Cir.), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977); Kaiser v. Cahn, 510 F.2d 282 (2d Cir. 1974); Ortiz v. La Faitee, 442 F.2d 912 (2d Cir. 1971); Swan v. Board of Higher Education, 319 F.2d 56 (2d Cir. 1963); Bomar v. Keyes, 162" }, { "docid": "749440", "title": "", "text": "DEPARTMENT IS TIME — BARRED Jurisdiction for plaintiff’s claim against the New York City Police Department is governed by 42 U.S.C. § 1983. There is no federal statute of limitations for a cause of action under 42 U.S.C. § 1983. The Supreme Court has held that in the absence of a federal statute of limitations, the most closely analogous state statute of limitations will be applied. Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). The Second Circuit has repeatedly held that the state statute of limitations applicable to § 1983 actions asserted against individual municipal officers is the three year period found in N.Y.C.P.L.R. 214(2) for actions “to recover upon a liability, penalty or forfeiture created or imposed by statute.” Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2nd Cir.1980); Meyer v. Frank, 550 F.2d 726 (2nd Cir.1977), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977); Kaiser v. Cahn, 510 F.2d 282, 284 (2nd Cir.1974). The Second Circuit has also applied by analogy the same three-year period to federal civil rights actions against municipalities. Quinn v. Syracuse Model Neighborhood Corp., supra. However a recent New York State Appellate Division case has held that the three- year statute of limitations period does not apply to § 1983 actions brought for violations of civil rights by municipalities. The court applied instead a one-year and ninety day statute of limitations found in General Municipal Law 50—i. Staffer v. City of Rochester, 80 App.Div. 16, 437 N.Y.S.2d 821 (1981) (Staffer). The court in Staffer stated that although “the Supreme Court in Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), held that municipalities are not immune from civil rights actions, it did not hold that municipalities are defined as persons for purposes of determining the applicable state law governing the appropriate Statute of Limitation” 439 N.Y.S.2d at 823. Pointing out that CPLR 214(2) applies to “an action to recover upon a liability, penalty or forfeiture created or imposed by statute,” the" }, { "docid": "22773554", "title": "", "text": "478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975). Following this mandate we have held that the three-year limitations period imposed by N.Y.C.P.L.R. § 214(2), which applies to actions to recover upon a liability created by statute, governs § 1983 suits brought against individuals in federal courts in New York. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980); Leigh v. McGuire, 613 F.2d 380, 382 (2d Cir. 1979), vacated and remanded for further consideration, - U.S. -, 100 S.Ct. 2935, 64 L.Ed.2d 820 (May 27, 1980); Meyer v. Frank, 550 F.2d 726, 728 (2d Cir.), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977); Kaiser v. Cahn, 510 F.2d 282, 284 (2d Cir. 1974). Section 214(2) has also been held by us to govern § 1983 actions against municipalities. Quinn v. Syracuse Model Neighborhood Corp., supra, 613 F.2d at 449. We reasoned in Quinn that “[t]o create different limitations periods for two similarly situated classes of defendants would create a distinction without a difference, and would engender unnecessary confusion for litigants and judges alike.” 613 F.2d at 449. Defendants-appellees here contend on the basis of the Supreme Court’s recent decision in Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979), that the appropriate state statute of limitations is not N.Y.C.P.L.R. § 214(2) but either N.Y.Gen. Municipal Law § 50 — i(1), which specifies a one-year, 90-day limitations period for actions against municipalities for wrongful conduct, or N.Y.C.P.L.R. § 215(3), which fixes a one-year limitations period for “an action to recover damages for assault, battery, false imprisonment, malicious prosecution, libel, slander . . ..” Their argument is that since the Court in Chapman stated that § 1983 “does not provide any substantive rights at all,” 441 U.S. at 618, 99 S.Ct. at 1916, but only furnishes a remedy for enforcement of federal constitutional rights, an action under § 1983 is not one “to recover upon a liability ... created or" }, { "docid": "11791018", "title": "", "text": "that defendants Lydon and Haviland destroyed exculpatory material at a particular place on a particular date. True, the substantive nature of the allegedly exculpatory material is not disclosed, as it will certainly have to be if plaintiffs are ultimately to prevail against these defendants. But in the Court’s view liberal construction of the complaint precludes dismissal on this ground. The Court cannot agree with the contention that any claims which plaintiffs may have in respect of defendants Haviland and Lydon are time-barred. The period of limitations for claims brought under the federal civil rights laws is derived from the most analogous state statute of limitations. Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975); Meyer v. Frank, 550 F.2d 726, 728 (2d Cir.), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977). Since plaintiffs’ § 1983 claim against these defendants is an action “to recover upon a liability ... created or imposed by statute,” it is governed by the three-year New York statute of limitations. N.Y.Civ.Prac.Law § 214(2) (McKinney Supp.1979); see Leigh v. McGuire, 613 F.2d 380, 382-83 (2d Cir. 1979); Keyse v. California Texas Oil Corp., 590 F.2d 45, 47 (2d Cir. 1978). This leaves the questions of when the limitations period began and whether the period expired before plaintiffs’ action was commenced. The gravamen of plaintiffs’ claim is clearly the imprisonment of Luis Gutierrez subsequent to an allegedly unfair trial. Amended Complaint at ¶ 22. The cause of action thus arose on May 3, 1976, when Luis Gutierrez was sentenced to imprisonment. Kaiser v. Cahn, 510 F.2d 282, 285 (2d Cir. 1974); see Martin v. Merola, 532 F.2d 191, 195 n.7 (2d Cir. 1976). Plaintiffs filed their complaint in the present action on July 10, 1979, more than three years after the date when the cause of action accrued. In the Court’s view, this fact does not require a finding that plaintiffs’ action against these defendants is barred by the applicable statute of limitations. As mentioned above, plaintiffs commenced a similar action to the present one, based" }, { "docid": "22702126", "title": "", "text": "573, 92 S.Ct. 2701. Our review of analogous cases indicates that stigmatizing information is not limited to charges of illegality, dishonesty or immorality. See, Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed. 725 (1975) (suspension from school on grounds of misconduct stigmatizing); Lombard v. Board of Education, 502 F.2d 631 (2d Cir. 1974) (charge of mental illness stigmatizing). . The appellees raise a number of factual issues, none of which can be resolved in this court. They claim, for example, that any stigma resulted from the “tone” of newspaper accounts, not from their specific statements. Further, they allege that any stigma has been erased by the Grand Jury Report, which vindicated Quinn’s reputation. These factual disputes as well as questions concerning the appellees’ “good faith” and actual involvement in the alleged “conspiracy,” must await resolution by the trier of fact. See Gentile v. Wallen, 562 F.2d 193, 195 n.2 (2d Cir. 1977). . Judge Munson did not reach this question because he could discern no municipal policy on which to base § 1983 liability, regardless of the applicable statute of limitations. Appellees’ argument that the one year and 90 day period set forth in N.Y.Gen.Mun.Law § 50 — i(l) governs claims for damages against individuals under § 1983 must fall before the unbroken line of cases applying the three-year limitations period of N.Y.Civ.Prac.Law and Rules § 214(2) to such claims. See, e. g., Leigh v. McGuire, 613 F.2d 380 (2d Cir. 1979); Meyer v. Frank, 550 F.2d 726 (2d Cir.), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977); Swan v. Board of Higher Education, 319 F.2d 56 (2d Cir. 1963). Indeed, we note that recent developments suggest the applicability of N.Y.Civ.Prac.Law and Rules § 213(1), the six-year residual statute of limitations, to suits arising under 42 U.S.C. § 1983. Compare State v. Cortelle Corp., 38 N.Y.2d 83, 378 N.Y. S.2d 654, 655, 341 N.E.2d 223, 224 (1975) (Breitel, C. J.) (§ 214(2) does not apply to “[statutory provisions which provide only additional remedies or standing [but] do not create or impose new obligations”)" }, { "docid": "22434502", "title": "", "text": "(1975). We have previously held that the appropriate statute of limitations for § 1983 actions brought in New York is CPLR § 214(2), which specifies a three-year limitations period for actions to recover upon a liability created or imposed by statute. E. g., Singleton v. City of New York, supra, 632 F.2d at 190; Taylor v. Mayone, 626 F.2d 247, 253 (2d Cir. 1980); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980); Meyer v. Frank, 550 F.2d 726, 728 (2d Cir.), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977). Appellant asks us to abandon these holdings in light of the Supreme Court’s decision in Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 618, 99 S.Ct. 1905, 1916, 60 L.Ed.2d 508 (1979), which held that § 1983 does not create any substantive rights and is only a remedial statute. Since § 214(2) does not apply to actions founded upon statutes that provide only additional remedies and do not create or impose new obligations, State v. Cortelle Corp., 38 N.Y.2d 83, 85-86, 378 N.Y.S.2d 654, 655-56, 341 N.E.2d 223 (1975), the continued application of § 214(2) to § 1983 actions after Chapman must be reexamined, as we have previously recognized. See Singleton v. City of New York, supra, 632 F.2d at 190; Taylor v. Mayone, supra, 626 F.2d at 251 n.4; Quinn v. Syracuse Model Neighborhood Corp., supra, 613 F.2d at 449 n.6. The issue is squarely presented in this case because, unlike the claims of the, plaintiffs in Taylor and Quinn, Pauk’s claim is untimely if § 214(2) applies. And, unlike the plaintiff in Singleton, Pauk specifically urges rejection of § 214(2) in favor of the longer six-year limitations period provided by either CPLR § 213(2) (McKinney 1972), applicable to contract actions, or § 213(1), New York’s residual statute of limitations. Appellees agree with Pauk that we should abandon application of § 214(2) in light of Chapman, but urge a much shorter limitations period, either the one-year-and-ninety-day limitations period for actions against a city or its employees, N.Y.Gen.Mun.Law §§ 50-i, 50-k(6)" }, { "docid": "11894025", "title": "", "text": "Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), that municipalities were no longer immune from suit under 42 U.S.C. § 1983, Fiesel commenced the present action under section 1983 and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., alleging that she was refused a teaching license in 1970 because of her physical handicap. She further stated that had she been granted a license in 1970, she would have had sufficient seniority to withstand the 1975 budget cuts. As relief, Fiesel asked the district court to enjoin appellees from engaging in the alleged discriminatory practices and policies and to grant her “full seniority and other rights and back-pay with interest ... to September 1970.” Complaint at 12. On May 28, 1980, the district court granted appellees’ motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b) on the ground that it was barred by the relevant three-year statute of limitations. DISCUSSION Fiesel’s argument on appeal, simply stated, is that accrual of a cause of action is a matter of state law, and that under New York law this cause of action did not accrue until the Supreme Court’s decision in Monell in June 1978. We accept neither the premise nor the conclusion. While the statute of limitations applicable to a section 1983 action is determined by reference to state law, Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980); Meyer v. Frank, 550 F.2d 726, 728 (2d Cir.), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977), accrual of the cause of action remains a question of federal law, Leonhard v. United States, 633 F.2d 599, 613 (2d Cir. 1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981); Kaiser v. Cahn, 510 F.2d 282, 285 (2d Cir. 1974). We agree with the Ninth Circuit, McConnell v. Critchlow, 661 F.2d 116 (9th Cir. 1981), that [a] decision recognizing a cause of action after the period has run does not retroactively interrupt the running of the limitations period.. . . Such delayed accrual could result in" }, { "docid": "749439", "title": "", "text": "claims against federal agencies. Section 14.2(b)(1) states that “(a) claim shall be presented to the Federal agency whose activities give rise to the claim.” Proper presentation of a tort claim against the United States to the appropriate federal agency is a prerequisite to any later court action under the Federal Tort Claims Act. DiLorenzo v. United States, 496 F.Supp. 79 (S.D.N.Y.1980); Kantor v. Kahn, 463 F.Supp. 1160 (S.D.N.Y. 1979). This applies to all federal agencies, including the F.B.I. Peterson v. United States, 428 F.2d 368 (8th Cir.1970). Failure to comply with the statutory procedures, a jurisdictional prerequisite to suit under the Federal Tort Claims Act, requires that the complaint be dismissed. Peterson v. United States, supra; DiLorenzo v. United States, supra. Plaintiff in the instant action has not alleged, in either the original or amended complaint, that she has satisfied the jurisdictional prerequisite to the maintenance of the present action. The instant action must therefore be dismissed for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). III. CLAIM AGAINST THE NEW YORK CITY POLICE DEPARTMENT IS TIME — BARRED Jurisdiction for plaintiff’s claim against the New York City Police Department is governed by 42 U.S.C. § 1983. There is no federal statute of limitations for a cause of action under 42 U.S.C. § 1983. The Supreme Court has held that in the absence of a federal statute of limitations, the most closely analogous state statute of limitations will be applied. Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). The Second Circuit has repeatedly held that the state statute of limitations applicable to § 1983 actions asserted against individual municipal officers is the three year period found in N.Y.C.P.L.R. 214(2) for actions “to recover upon a liability, penalty or forfeiture created or imposed by statute.” Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2nd Cir.1980); Meyer v. Frank, 550 F.2d 726 (2nd Cir.1977), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977); Kaiser v. Cahn, 510 F.2d 282, 284 (2nd Cir.1974). The Second Circuit has also applied by" }, { "docid": "22434501", "title": "", "text": "review. Since appellant chose not to pursue the grievance procedure, the letters of notification he received from the President and Provost constituted final university action rejecting his tenure application. Pauk’s discharge following receipt of those letters was simply the “inevitable consequence” of the adverse tenure decision previously made by the College just like the plaintiff’s discharge following the trustees’ notification letter in Ricks. 449 U.S. at 255, 101 S.Ct. at 503. We see no basis for distinguishing appellant’s case from Ricks. Since the Board did not delegate any duty in this case, we affirm the District Judge’s ruling that appellant’s federal claim accrued as of November 24,1975, the date he received final notice of his discharge. Statute of Limitations Because Congress has not provided a federal statute of limitations for. actions brought under § 1983, we must apply the most appropriate state statute of limitations. Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). We have previously held that the appropriate statute of limitations for § 1983 actions brought in New York is CPLR § 214(2), which specifies a three-year limitations period for actions to recover upon a liability created or imposed by statute. E. g., Singleton v. City of New York, supra, 632 F.2d at 190; Taylor v. Mayone, 626 F.2d 247, 253 (2d Cir. 1980); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980); Meyer v. Frank, 550 F.2d 726, 728 (2d Cir.), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977). Appellant asks us to abandon these holdings in light of the Supreme Court’s decision in Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 618, 99 S.Ct. 1905, 1916, 60 L.Ed.2d 508 (1979), which held that § 1983 does not create any substantive rights and is only a remedial statute. Since § 214(2) does not apply to actions founded upon statutes that provide only additional remedies and do not create or impose new obligations, State v. Cortelle" }, { "docid": "22773553", "title": "", "text": "N.Y.C.P.L.R. § 214(2), which applies to actions “to recover upon a liability ... created or imposed by statute.” Finding that Singleton’s § 1983 cause of action for false arrest and assault accrued on November 14, 1975, the date on which the incident occurred, the court concluded that these claims were time-barred since Singleton commenced his action more than three years after that date. As to the malicious prosecution claim, which allegedly arose on December 16, 1976, when the prosecution of Singleton was terminated, the court concluded that although the claim was timely filed, it must be dismissed for failure to allege that the state court prosecution had terminated in favor of plaintiff, as required by Cardi v. Supermarket General Corp., 453 F.Supp. 633 (S.D.N.Y.1978). From the judgment dismissing his complaint, Singleton appeals. DISCUSSION Since Congress has not established a federal statute of limitations for actions brought in federal court under § 1983, we are instructed to apply the state statute of limitations most appropriate to § 1983 actions. Board of Regents of Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975). Following this mandate we have held that the three-year limitations period imposed by N.Y.C.P.L.R. § 214(2), which applies to actions to recover upon a liability created by statute, governs § 1983 suits brought against individuals in federal courts in New York. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980); Leigh v. McGuire, 613 F.2d 380, 382 (2d Cir. 1979), vacated and remanded for further consideration, - U.S. -, 100 S.Ct. 2935, 64 L.Ed.2d 820 (May 27, 1980); Meyer v. Frank, 550 F.2d 726, 728 (2d Cir.), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977); Kaiser v. Cahn, 510 F.2d 282, 284 (2d Cir. 1974). Section 214(2) has also been held by us to govern § 1983 actions against municipalities. Quinn v. Syracuse Model Neighborhood Corp., supra, 613 F.2d at 449. We reasoned in Quinn that “[t]o create different limitations periods for" }, { "docid": "22702127", "title": "", "text": "1983 liability, regardless of the applicable statute of limitations. Appellees’ argument that the one year and 90 day period set forth in N.Y.Gen.Mun.Law § 50 — i(l) governs claims for damages against individuals under § 1983 must fall before the unbroken line of cases applying the three-year limitations period of N.Y.Civ.Prac.Law and Rules § 214(2) to such claims. See, e. g., Leigh v. McGuire, 613 F.2d 380 (2d Cir. 1979); Meyer v. Frank, 550 F.2d 726 (2d Cir.), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977); Swan v. Board of Higher Education, 319 F.2d 56 (2d Cir. 1963). Indeed, we note that recent developments suggest the applicability of N.Y.Civ.Prac.Law and Rules § 213(1), the six-year residual statute of limitations, to suits arising under 42 U.S.C. § 1983. Compare State v. Cortelle Corp., 38 N.Y.2d 83, 378 N.Y. S.2d 654, 655, 341 N.E.2d 223, 224 (1975) (Breitel, C. J.) (§ 214(2) does not apply to “[statutory provisions which provide only additional remedies or standing [but] do not create or impose new obligations”) with Chapman v. Houston Welfare Rights Org., 441- U.S. 600, 618, 99 S.Ct. 1905, 1916, 60 L.Ed.2d 508, 523 (1979) (“by its terms, as well as its history, [§ 1983] does not provide any rights at all.”) . In Fine v. City of New York, 529 F.2d 70, 76 (2d Cir. 1975), we suggested, in dictum, that N.Y.Gen.Mun.Law § 50-i(1) “would appear to be the most appropriate” period of limitations for suits against municipalities based squarely on the Fourteenth Amendment. This question is not before us, and our cautious suggestion in Fine in no wise answers the question as to the appropriate limitations period for § 1983 suits against municipalities." }, { "docid": "11894026", "title": "", "text": "law, and that under New York law this cause of action did not accrue until the Supreme Court’s decision in Monell in June 1978. We accept neither the premise nor the conclusion. While the statute of limitations applicable to a section 1983 action is determined by reference to state law, Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980); Meyer v. Frank, 550 F.2d 726, 728 (2d Cir.), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977), accrual of the cause of action remains a question of federal law, Leonhard v. United States, 633 F.2d 599, 613 (2d Cir. 1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981); Kaiser v. Cahn, 510 F.2d 282, 285 (2d Cir. 1974). We agree with the Ninth Circuit, McConnell v. Critchlow, 661 F.2d 116 (9th Cir. 1981), that [a] decision recognizing a cause of action after the period has run does not retroactively interrupt the running of the limitations period.. . . Such delayed accrual could result in an outpouring of stale, difficult to defend claims, contrary to the policy underlying limitations statutes. Id. at 118. Accordingly, we reject Fiesel’s argument that her cause of action, based on alleged wrongs occurring in 1970, did not accrue until Monell was decided in 1978. As Judge Metzner stated in Duchesne v. Sugarman, 459 F.Supp. 313, 314 (S.D.N.Y.1978), “[i]t is inconceivable that a byproduct of Monell would be to open the courts to claims for damages based on actions taken by municipalities in the intervening years.” Fiesel was perfectly free at any time within three years of the alleged discrimination to challenge the reasoning of Monroe v. Pape, as did the petitioners in Monell, ultimately prevailing in 1978. The true reason for her failure to do so is explained candidly in her brief at page nine: Simply put, all of the rights settled by [Monell, Gurmankin v. Costanzo, 411 F.Supp. 982 (E.D.Pa.1976), aff’d, 556 F.2d 184 (3rd Cir. 1977), cert. denied, 450 U.S. 923 [101 S.Ct. 1375, 67 L.Ed.2d 352] (1981), and Franks v. Bowman Transportation" }, { "docid": "18925598", "title": "", "text": "legal claim that is timely. This response requires the Court to determine which statute of limitations is applicable to the claims in question. The Civil Rights Act does not contain its own statute of limitations, and, therefore, the period to be applied must be drawn from the most appropriate state statute. Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 1794-95, 64 L.Ed.2d 440 (1980); Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975); Kaiser v. Cahn, 510 F.2d 282, 284 (2d Cir.1974). It is well established in this Circuit that the proper statute of limitations to be applied in a federal civil rights case is the three-year period provided by section 214(2) of the New York Civil Practice Law and Rules, which applies to liability created or imposed by statute. See Pauk v. Board of Trustees, 654 F.2d 856, 858 (2d Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982); Kaiser v. Cahn, 510 F.2d 282, 284 (2d Cir.1974); Staples v. Avis Rent-A-Car System, Inc., 537 F.Supp. 1215, 1218 (W.D.N.Y.1982); Marin v. New York State Department of Labor, 512 F.Supp. 353, 355 (S.D.N.Y.1981). Thus, although defendants urge rejection of the three-year period of section 214(2) in favor of a much shorter limitations period, either the one-year period set forth in the New York Human Rights Law, N.Y. Exec.Law § 297 (McKinney 1982), or the four-month period applied in article 78 proceedings, N.Y.Civ.Prac.Law & R. § 217 (McKinney 1972), we are not persuaded that the longer period should be abandoned in a case brought under the Act. The Second Circuit has previously rejected the application of limitations periods any shorter than the three years specified by section 214(2), see, e.g., Taylor v. Mayone, 626 F.2d 247, 253 (2d Cir.1980); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir.1980), and has specifically refused to apply section 217, noting that “[t]he brevity of [the three-month] period makes it singularly inappropriate for § 1983 actions.” Pauk, supra, 654 F.2d at 863. Faced with such overwhelming" }, { "docid": "5151244", "title": "", "text": "F.2d 650 (2d Cir. 1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1725, 48 L.Ed.2d 194 (1976). Defendants’ next argument is that the present suit is barred by the statute of limitations. It is only necessary to consider this contention with respect to the action against the Commissioner of the Department of Correctional Services for declaratory relief since the Court has decided that the other actions cannot be maintained. Since the Civil Rights Acts do not contain a statute of limitations, the period of limitations to be applied is that applica ble to the most similar state cause of action. Kaiser v. Cahn, 510 F.2d 282 (2d Cir. 1974); Ortiz v. LaVallee, 442 F.2d 912 (2d Cir. 1971); Romer v. Leary, 425 F.2d 186 (2d Cir. 1970). The most similar state cause of action to the present suit is an Article 78 proceeding. In such a proceeding, the Commissioner would have been subject to a writ of mandamus if the magazines had been wrongfully withheld from the plaintiff. New York CPLR § 217 provides a four-month statute of limitations for Article 78 proceedings. While the Second Circuit has indicated that the normal statute of limitations to be applied in a federal civil rights case is the three-year period provided by New York CPLR § 214(2) for liability based upon statute, Kaiser v. Cahn, supra, it has specifically left open the question whether the four-month limitation applicable to Article 78 proceedings is the kind of state statute of limitations to which a federal court would look. Romer v. Leary, supra, 425 F.2d at 187; Swan v. Board of Higher Education, 319 F.2d 56, 60 (2d Cir. 1963). However, it is unnecessary to decide this question, since the Complaint in the present case was timely filed even if New York CPLR § 217 is controlling. Plaintiff received notice on June 24,1976, of the Media Review Committee’s action in denying him receipt of the magazine. The Complaint in this action was formally filed by the Clerk on November 8, 1976, which is more than four months thereafter, but the Complaint was received by" }, { "docid": "22347999", "title": "", "text": "accrual rules applied, however, Leonhard would not be able to justify his preferred 1975 date, since he does not allege that any of the defendants’ acts occurred as late as 1975. While the complaint alleges conclusorily that the federal defendants concealed the children until 1975 and refused his “repeated requests to be informed of [their] whereabouts,” no overt acts are alleged. And the affidavit of Rochelle, submitted to the district court by plaintiffs, shows only that the government concealed and supported Rochelle and the children until July 1970. Thus, even applying common law rules, on the basis of the evidence presented by plaintiffs we conclude that Leonhard’s claims accrued not later than July 1970. The remaining question is within what period Leonhard was required to bring suit. Since Congress has not provided a statute of limitations for Bivens actions, we must use the most nearly analogous state statute of limitations. See Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). In Regan v. Sullivan, 557 F.2d 300 (2d Cir. 1977), this Court held that the most appropriate statute for a Bivens action accruing in New York is either the three-year limitation provided by CPLR § 214(2) for an action to recover upon a liability imposed by statute, or the six-year limitation provided by CPLR § 213(1) for actions for which no limitation is specifically prescribed. In Re-gan we had no need to determine which of the two periods was the more appropriate because the action was barred under either statute. The same is true here. Since Le-onhard’s causes of action accrued no later than 1970, i. e., more than six years before the June 1978 commencement of this suit, the suit is barred. B. The State Defendants Leonhard’s complaint challenges only a single act by the state defendants: that they released Pascal Calabrese from custody prior to the date authorized by law. While the complaint is far from clear in this respect, it may be construed to allege" }, { "docid": "22348001", "title": "", "text": "that the release of Calabrese in 1968 violated Leonhard’s constitutional rights and to seek relief under § 1983. As to § 1983 actions, like Bivens-type actions, Congress has not specified a statute of limitations, and again we must look to state law. With respect to § 1983 actions brought in federal district courts in New York, this Court has repeatedly held that the appropriate period is the three-year limitation of CPLR § 214(2). Taylor v. Mayone, 626 F.2d 247 (2d Cir. 1980); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980); Leigh v. McGuire, 613 F.2d 380 (2d Cir. 1979), vacated and remanded for further consideration, — U.S. —, 100 S.Ct. 2935, 64 L.Ed.2d 820 (1980); Meyer v. Frank, 550 F.2d 726 (2d Cir.), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977); Kaiser v. Cahn, 510 F.2d 282 (2d Cir. 1974); Ortiz v. La Faitee, 442 F.2d 912 (2d Cir. 1971); Swan v. Board of Higher Education, 319 F.2d 56 (2d Cir. 1963); Bomar v. Keyes, 162 F.2d 136, 140 (2d Cir.) (L. Hand, J.) (predecessor statute of § 214(2)), cert. denied, 332 U.S. 825, 68 S.Ct. 166, 92 L.Ed. 400 (1947). There is no reason to apply a different limitations period here. Since Calabrese was paroled in 1968, and Leonhard’s complaint was filed in 1978, Leonhard’s action against the state defendants is time-barred. C. The City Defendants Leonhard’s claim against the city defendants also is asserted under § 1983. The claim is that Giambrone, acting under color of law as an employee of the Buffalo police department and acting with the authority of the City, participated in the removal and concealment of Leonhard’s children from him. Although the complaint contains conclusory assertions that Giambrone and the City refused to reveal the children’s whereabouts to Leonhard and impeded Leonhard’s efforts to find them, it does not allege any overt acts on the part of Giambrone or the City after 1967. We conclude, therefore, that Leonhard’s claims against Giambrone and the City accrued in 1967 when the children were removed, or in any" }, { "docid": "15573891", "title": "", "text": "a cause of action under 42 U.S.C. § 1983, that the Department is not a legal entity which may be sued, that the County, the Department, the Sheriff, defendant Gabriel T. Russo and defendant W. Burton Richardson are not liable under the theory of responde-at superior and that all defendants are protected from the instant suit by either absolute or qualified immunity. ANALYSIS 1. Statute of Limitations Defendants do not contend that plaintiffs’ cause of action is time-barred under the three-year statute of limitations that the United States Court of Appeals for the Second Circuit has consistently held applicable to suits brought under 42 U.S.C. § 1983 (e.g., Singleton v. City of New York, 632 F.2d 185 (2d Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981); Taylor v. Mayone, 626 F.2d 247 (2d Cir.1980); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir.1980); Meyer v. Frank, 550 F.2d 726 (2d Cir.1977), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977). Defendants contend rather that the propriety of applying the three-year statute, borrowed from New York’s Civil Practice Law and Rules (“CPLR”) § 214(2), requires reexamination in light of the decisions in Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979), State v. Cortelle Corp., 38 N.Y.2d 83, 378 N.Y.S.2d 654, 341 N.E.2d 223 (1975), and Staffen v. City of Rochester, 80 A.D.2d 16, 437 N.Y.S.2d 821 (4th Dept.1981). Defendants urge that these decisions require the rejection of CPLR § 214(2) in favor of the one-year-and-ninety-days period for bringing suits against municipalities provided by New York’s General Municipal Law § 50—i, and the one-year limitations period for suits against a sheriff and his deputies under CPLR § 215(1). In response to this claim of defendants it suffices to note that it has recently been thoroughly analyzed and rejected by our Court of Appeals, in Pauk v. Board of Trustees of City University of New York, 654 F.2d 856, 861-867 (2d Cir.1981). Accordingly, the three-year period provided by CPLR § 214(2) must be held applicable" }, { "docid": "22348002", "title": "", "text": "F.2d 136, 140 (2d Cir.) (L. Hand, J.) (predecessor statute of § 214(2)), cert. denied, 332 U.S. 825, 68 S.Ct. 166, 92 L.Ed. 400 (1947). There is no reason to apply a different limitations period here. Since Calabrese was paroled in 1968, and Leonhard’s complaint was filed in 1978, Leonhard’s action against the state defendants is time-barred. C. The City Defendants Leonhard’s claim against the city defendants also is asserted under § 1983. The claim is that Giambrone, acting under color of law as an employee of the Buffalo police department and acting with the authority of the City, participated in the removal and concealment of Leonhard’s children from him. Although the complaint contains conclusory assertions that Giambrone and the City refused to reveal the children’s whereabouts to Leonhard and impeded Leonhard’s efforts to find them, it does not allege any overt acts on the part of Giambrone or the City after 1967. We conclude, therefore, that Leonhard’s claims against Giambrone and the City accrued in 1967 when the children were removed, or in any event no later than 1970 when the last overt acts to conceal the children occurred. See part A above. Since a three-year period of limitations applies to these claims, see part B above, Leonhard’s claims against the city defendants were properly dismissed. IV. THE CHILDREN’S CONSTITUTIONAL CLAIMS As outlined in part I, the children, like Leonhard, assert that the acts of the defendants violated their constitutional rights. The district court drew no distinction between the claims of Leonhard and those of the children. The children’s constitutional claims against each group of defendants were held barred by the statute of limitations; in addition their claims against the federal defendants were held barred by principles of collateral estoppel, their claims against the state defendants were held barred by the Eleventh Amendment and dismissed for failure to state a claim, and their claims against the city defendants were held barred by the principle of Monroe v. Pape, supra. We disagree with certain of these rationales, although not with the results. While the claims of Leonhard himself are barred" } ]

[ { "docid": "22780829", "title": "", "text": "full contestation of all the issues, and takes no question of fact from either court or jury. • At most therefore it is merely a rule of evidence. It does not abridge the right of trial, by jury or take away any of its incidents. Nor does it in any wise work a denial of due process of law. In principle it is not unlike the statutes in many of the States whereby tax deeds are made,prima facie evidence of the regularity of all the proceedings upon which their validity depends. Such statutes have been generally sustained, Pillow v. Roberts, 13 How. 472, 476; Marx v. Hanthorn, 148 U. S. 172, 182; Turpin v. Lemon, 187 U. S. 51, 59; Cooley’s Constitutional Limitations, 7th ed. 525, as have many other state and Federal enactments establishing other rebuttable presumptions. Mobile &c. Railroad v. Turnipseed, 219 U. S. 35, 42; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 81; Reitler v. Harris, 223 U. S. 437; Luria v. United States, 231 U. S. 9, 25. Ah instructive case upon the subject is Holmes v. Hunt, 122 Massachusetts, 505, where, in an elaborate opinion by Chief Justice Gray, a statute making the report of an auditor prima facie evidence at the trial before a jury was held to be a legitimate exercise of legislative power oyer rules of evidence and in no wise inconsistent with the constitutional right of trial by jury. And in Chicago &c. Railroad v. Jones, 149 Illinois, 361, 382, a like ruling was made in respect of a statutory provision similar to that now before us. Complaint is made because the court refused to direct a verdict for the defendant, but of this it suffices to say that the ruling was undoubtedly right, because the plaintiff’s evidence, including the findings and orders of the Commission, tended to show every fact essential to a recovery upon both claims and there was no opposing evidence. The District Court made an allowance of $20,000 as a fee for the plaintiff’s attorneys and directed that it be taxed, and collected as" } ]

[ { "docid": "23245358", "title": "", "text": "of Laws, § 595, Comment a, it is first stated that the law of the forum governs matters relating to burden of proof. It is then stated that if by the lex loci delicti tho requirement that plaintiff must prove himself free from fault is “interpreted as a condition of the cause of action itself”, then the forum will apply the foreign rule. But to say it is a condition of the eanse of action seems to be merely another way of saying that the plaintiff has the burden of proof; for if this burden is upon tho plaintiff, his recovery is necessarily conditioned upon his convincing tho jury of his freedom from contributory fault. Tho Olson ease, cited in the text, relies upon this section of the Restatement for its authority. In Precourt v. Driscoll, supra, also cited in tho text, the New Hampshire court is affected by the same curious form of statement, which apparently was derived originally from Central Vermont Railway v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 3433, Ann.Cas.1916B, 252. A similar verbal twist could be used to show that a rule putting the burden on tho defendant is a matter of substance. It can be said that where a defendant has negligently caused harm, the requirement that he must affirmatively establish the plaintiff’s contributory negligence is a “condition” of his defense. But putting it this way really proves nothing. If by the lex loci, contributory negligence is not a complete defense but goes only in mitigation of damages, this is clearly a matter of substance as to which the forum would follow the foreign rule. Fitzpatrick v. International Ry. Co., 252 N.Y. 127, 169 N.E. 112, 68 A.L.R. 801; Caine v. St. Louis & S. F. Ry., 1923, 209 Ala. 181, 95 So. 876, 32 A.L.R. 793. So, if by the lex loci, contributory negligence is no defense where defendant had a “last clear chance”, this again is clearly a matter of substantive law. But where the lex loci and the lex fori agree that the plaintiff’s contributory negligence will bar" }, { "docid": "23245335", "title": "", "text": "Railway, 124 Minn. 368, 373, 145 N.W. 40; Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053. See Helton v. Alabama Midland, 97 Ala. 275, 12 So. 276; St. Louis & S. F. R. Co. v. Coy, 113 Ark. 265, 168 S.W. 1106; Prinn v. De Rice, 1930, 129 Me. 479, 149 A. 580; Pennsylvania Co. v. McCann, 54 Ohio St. 10, 42 N.E. 768, 31 L.R.A. 651, 56 Am.St.Rep. 695. Contra: Olson v. Omaha & C. B. S. Railway Co., 131 Neb. 94, 267 N.W. 246; Precourt v. Driscoll, 85 N.H. 280, 157 A. 525, 78 A.L.R. 874. Cf. Lykes Bros. SS. Co. v. Esteves, 5 Cir., 89 F.2d 528; Dela ware & Hudson Co. v. Nahas, 3 Cir., 14 F.2d 56. In these two groups of cases the courts were talking about the same thing and labelling it differently, but in each instance. the result was the same; the court was choosing the appropriate classification to enable it to apply its own familiar rule. In another and quite-different setting the question of classification has frequently arisen, namely, in cases involving the constitutionality of statutes shifting from the plaintiff to the defendant the burden of proof on the issue of contributory negligence, as applied retroactively to alleged torts committed before the date of the enactment. Here the courts, federal as well as state, have upheld the statutes as so applied. Sackheim v. Pigueron, 215 N.Y. 62, 109 N.E. 109; Southern Ind. Ry. v. Peyton, 157 Ind. 690, 693, 61 N.E. 722; Wallace v. Western N. C. R., 104 N.C. 442, 10 S.E. 552; Easterling Lumber Co. v. Pierce, 235 U.S. 380, 35 S.Ct. 133, 59 L.Ed. 279. See Meeker v. Lehigh Valley Rd. Co., 236 U.S. 412, 430, 35 S.Ct. 328, 59 L.Ed. 644, Ann.Cas.1916B, 691; Luria v. United States, 231 U.S. 9, 25-27, 34 S.Ct. 10, 58 L.Ed. 101; Mobile, Jackson & Kansas City Rd. Co. v. Turnipseed, 219 U.S. 35, 42, 31 S.Ct. 136, 55 L.Ed. 78, 32 L.R.A.,N.S., 226, Ann.Cas.1912A, 463; Reitler v. Harris, 223 U.S. 437, 441, 442, 32 S.Ct. 248, 56 L.Ed. 497. The" }, { "docid": "21347502", "title": "", "text": "of opinion that it was ample to sustain a verdict for plaintiff, we hold untenable defendant’s repeated contention that it was entitled to the peremptory instruction, Defendant also contends that section 7.051, Compiled General Laws of Florida, which undertakes to create the presumption of negligence as against railroad companies upon proof of injury, and which the trial court applied in this case, is unconstitutional because it violates the due process and equal protection clauses of the Fourteenth Amendment. That section and the one following it, which provides for diminution of damages in cases of contributory negligence, are copied in the former opinion in this case; and also in Kirch v. Atlantic Coast Line R. Co. (C. C. A.) 38 F.(2d) 963, where we rejected the same contention. The Supreme Court held in Seaboard Air Line Railway Co. v. Watson, 287 U. S. 86, 53 S. Ct. 32, 77 L. Ed. 180, 86 A. L. R. 174, that section 7051 did not violate the equal protection clause of the Fourteenth Amendment; and in Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 31 S. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463, that the Mississippi statute, which provides that proof of injury inflicted by the running of locomotives or cars of a railroad company shall be prima facie evidence of negligence, violated neither the equal protection nor the due process clause of that amendment. Section 7051, as construed by the Florida Supreme Court, has the same meaning, in so far as is here material, as the Mississippi statute; and, although it was copied from a Georgia statute, the case of Western & Atlantic R. R. v. Henderson, 279 U. S. 639, 49 S. Ct. 445, 447, 73 L. Ed. 884, is not in point because the ruling there was that, as construed by the Georgia decisions, the statute '‘creates an inference that is given effect of evidence to be weighed against opposing testimony, and is to prevail unless such testimony is found by the jury to preponderate.” The" }, { "docid": "23245343", "title": "", "text": "is to be classified as a matter of substantive law, we are in harmony with the spirit of the Tompkins case, and at the same time are adhering to the classification maintained in an unbroken line of federal court decisions under Swift’ v. Tyson, supra. Federal courts in other circuits have held, since the Tompkins decision, that the state rule as to burden of proof must now be applied in diversity of citizenship cases. Equitable Life Assurance Society v. MacDonald, 9 Cir., 1938, 96 F.2d 437; Schopp v. Muller Dairies, Inc., D.C.N.Y., 1938, 25 F.Supp. 50. See Montgomery Ward & Co., Inc. v. Snuggins, 8 Cir., 1939, 103 F.2d 458; Central Surety & Ins. Corp. v. Murphy, 10 Cir., 1939, 103 F.2d 117; Coca-Cola Bottling Co. v. Munn, 4 Cir., 1938, 99 F.2d 190, 193; Hagan & Cushing Co. v. Washington Water Power Co., 9 Cir., 1938, 99 F.2d 614; Lee v. Cannon Mills Co., 4 Cir., 1939, 107 F.2d 109. The Supreme Court has recently decided that a federal district court in Texas, entertaining a bill to remove a cloud on title to Texas land, must, under Erie Railroad Co. v. Tompkins, supra, apply the established Texas rule that on an issue of bona fide purchase for value without notice, the burden of proof is upon him who attacks the legal title and asserts a superior equity. Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 203, 84 L.Ed. — - (December 4, 1939). In a brief opinion the court makes the point that the local rule “relates to a substantial right upon which the holder of recorded legal title to Texas land may confidently rely. * * * This was a valuable assurance in favor of its title.” While it is not believed that this holding is necessarily conclusive of the question now before us, the fact that the court cited as authority Central Vermont Railway v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252, a case relating to contributory negligence, strengthens our conclusion that the state rule as to" }, { "docid": "16246774", "title": "", "text": "the United States.” (Italics supplied.) Both the defendant and the Government cite the well known line of cases holding that legislation declaring that proof of\" one fact shall constitute prima facie evidence of the existence of another fact is valid if there is a rational connection between what is proved and what is to be inferred; and that if the presumption is not unreasonable and not made conclusive of the rights of the person against whom raised, it does not constitute a denial of the due process clause; and, conversely, that if the connection is irrational or unreasonable, such a. statute does constitute such a denial. Manley v. Georgia, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575; McFarland v. American Sugar-Refining Company, 241 U.S. 79, 36 S.Ct. 498, 60 L.Ed. 899; Hawes v. Georgia, 258 U.S. 1, 42 S.Ct. 204, 66 L.Ed. 431; Casey v. United States, 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632; Morrison v. California, 291 U. S. 82, 54 S.Ct. 281, 78 L.Ed. 664; Bailey v. Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L. Ed. 191; Mobile J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78, 32 L.R.A.,N.S., 226, Ann.Cas,1912A, 463, etc. The question is, therefore, in this case :- Is there a rational connection between the-fact proved (possession of the firearm) and' the ultimate fact presumed (that the firearm-was shipped, transported, or received in interstate commerce) ? And is the inference-of transportation or receipt in interstate-commerce from the fact of possession so-unreasonable as to be purely an arbitrary mandate ? These questions are not easy. Criminal statutes creating presumptions, generally deal with such questions as-knowledge and intent; such as guilty knowledge upon a charge of receiving and;. concealing stolen property. There are numerous authorities upholding the validity of state statutes creating such presumptions. A statute providing that proof of possession of stolen goods would be prima facie evidence of the theft of such goods would probably be valid; but such a statute would not dispense with the necessity of proving that the particular goods" }, { "docid": "4034278", "title": "", "text": "263 Ill.App. 325; Dee v. City of Peru, 343 Ill. 36, 174 N.E. 901. The defendant insists that the federal court is bound in this case to apply the law of negligence and contributory negligence laid down by the Illinois courts' in the decisions listed in the foregoing paragraph and in similar decisions. To support his contention he relies upon the recent decision of the United States Supreme Court in the case of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 (decided April 25, 1938), which overruled the-long prevailing doctrine of Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, that upon questions of general law the federal courts are free, in the absence of a state statute or a local law, to exercise their independent judgment as to what the law is. Prior to the decision in the case of Erie R. Co. v. Tompkins, supra, the law of negligence and of contributory negligence was uniformly held by the federal courts to be in the field of general law wherein the federal courts were not bound to follow the state decisions but were free to follow their own. The uniform federal rule was that contributory negligence constituted an affirmative defense and the plaintiff was not required to plead or prove due care, or freedom from contributory negligence as part of his case. Washington & G. Railroad Co. v. Glad mon, 15 Wall. 401, 405-408, 21 L.Ed. 114; Chicago Great Western R. Co. v. Price, 8 Cir., 97 F. 423; Cook Paint & Varnish Co. v. Hickling, 8 Cir., 76 F.2d 718; Central Vermont R. Co. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann. Cas.1916B, 252; Miller v. Union Pac. R. Co., 290 U.S. 227, 54 S.Ct. 172, 78 L.Ed. 285; Pokora v. Wabash R. Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149, 91 A.L.R. 1049. The last mentioned case arose in Illinois and though the Illinois rule then, as now, was directly to the contrary the Supreme Court said that the burden of proof" }, { "docid": "9597144", "title": "", "text": "Public Utilities Comm. (D.C.Mich.) 294 F. 703, 708; Michigan Public Utilities Comm. v. Duke, 266 U.S. 570, 577, 45 S.Ct. 191, 69 L.Ed. 445, 36 A.L.R. 1105; Sprout v. South Bend, 277 U.S. 163, 172, 48 S.Ct. 502, 505, 72 L.Ed. 833, 62 A.L.R. 45; Cobb v. Department of Public Works (D.C.Wash.) 60 F.(2d) 631, 640. In Sprout v. South Bend, supra, the court said: “Such provisions for insurance are not, even as applied to busses engaged exclusively in interstate commerce, an unreasonable burden on that commerce, if limited to damages suffered within the state by persons other than the passenger.” Lindstrom v. Mutual S. S. Co., 132 Minn. 328, 156 N.W, 669, 670, L.R.A. 1916D, 935; Konnerson v. Thames Towboat Co., 89 Conn. 367, 94 A. 372, 370, L.R.A.1916A, 436; Jensen v. South Pac. Co., 215 N.Y. 514, 109 N.E. 600, 601, L.R.A.1916A, 403, Ann.Cas.1916B, 276; Stoll v. Pac. Coast S. S. Co. (D.C. Wash.) 205 F. 109, 173, 177; Second Employers’ Liability Cases, 223 U.S. 1, 54, 55, 82 S.Ct. 169, 177, 56 L.Ed. 327, 38 L.R.A.(N.S.) 44; Sherlock v. Alling, Adm’r, 93 U.S. 99, 103, 104, 23 L.Ed. 819; The Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 402, 408, 409, 33 S.Ct. 729, 57 L.Ed. 1511, 48 L.R.A.(N.S.) 1151, Ann.Cas.1916A, 18; Erie R. R. Co. v. Williams, 233 U.S. 685, 704, 34 S.Ct. 761, 58 L.Ed. 1155, 51 L.R.A.(N.S.) 1097; See, also, Martin v. West, 222 U.S. 191, 197, 198, 32 S.Ct. 42, 56 L.Ed. 159, 36 L.R.A.(N.S.) 592. In Second Employers’ Liability Oases, supra, the court said: “True, prior to the present act, the laws of the several states were regarded as determinative of the liability of employers engaged in interstate commerce for injuries received by their employees while engaged in such commerce. But that was because Congress, although empowered to regulate that subject, had not acted thereon, and because the subject is one which falls within the police power of the states in the absence of action by Congress.” Curtis & Gartside Co. v. Pribyl, 38 Okl. 511, 134 P. 71, 73, 49" }, { "docid": "23245337", "title": "", "text": "courts say that such statutes introduce no change of the substantive, law rule that contributory negligence is a complete bar to liability, but pertain only to the procedure by which the fact as to contributory negligence is to be established. In Easterling Lumber Co. v. Pierce, supra, a state statute, applicable to railroads, provided that from the proof of the happening of an accident there should arise a prima facie presumption of negligence. Referring to this statute, the Supreme Court said, 235 U.S. at page 382, 35 S.Ct. at page 134, 59 L.Ed. 279: “The objection to the * * * statute is that it was wanting in due process because retroactively applied to the case since the statute was enacted after the accident occurred. But the court below held that the statute cut off no substantive defense but simply provided a rule of evidence controlling the burden of proof. That as thus construed it does not violate the Fourteenth Amendment to the Constitution of the United States is also so conclusively settled as to again require nothing but a reference to the decided cases.” It is apparent, then, that burden of proof does not fall within either category of “substance” or “procedure” by virtue of any intrinsic compulsion, but the matter has been made to turn upon the purpose at hand to be served by the classification. Therefore, inasmuch as the older decisions in the federal courts, applying in diversity cases the federal rule as to burden of proof as a matter of “general law”, are founded upon an assumption no longer valid since Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, their classification of burden of proof as a matter of substance should be re-examined in the light of the objective and policy disclosed in the Tompkins case. The opinion in that case sets forth as a moving consideration of policy that it is unfair and unseemly to have the outcome of litigation substantially affected by the fortuitous existence of diversity of citizenship. Hence, the greater likelihood there is" }, { "docid": "23245344", "title": "", "text": "a bill to remove a cloud on title to Texas land, must, under Erie Railroad Co. v. Tompkins, supra, apply the established Texas rule that on an issue of bona fide purchase for value without notice, the burden of proof is upon him who attacks the legal title and asserts a superior equity. Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 203, 84 L.Ed. — - (December 4, 1939). In a brief opinion the court makes the point that the local rule “relates to a substantial right upon which the holder of recorded legal title to Texas land may confidently rely. * * * This was a valuable assurance in favor of its title.” While it is not believed that this holding is necessarily conclusive of the question now before us, the fact that the court cited as authority Central Vermont Railway v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252, a case relating to contributory negligence, strengthens our conclusion that the state rule as to burden of proof on the issue of contributory negligence should be followed in the federal court in diversity of citizenship cases. Thus far, the case has been discussed as though suit had been brought in the federal court sitting in tlie state where the alleged tort occurred. But there is the complicating factor that the accident occurred in Maine and suit was brought in Massachusetts. This makes it necessary to consider three further points: First, if the plaintiff had sued in a Massachusetts state court, would the Massachusetts Supreme Judicial Court have allowed the application of the Maine rule as to burden of proof? The answer is, no. The Court would have said that burden of proof is a matter of procedure only, and would have applied the Massachusetts rule that the burden is on the defendant to establish the plaintiff’s contributory negligence. Such was the holding in Levy v. Steiger, 233 Mass. 600, 124 N.E. 477, and Smith v. Brown, Mass., 19 N.E.2d 732. Second, would such a decision by the Supreme Judicial Court" }, { "docid": "4499514", "title": "", "text": "Due Process — Equal Protection — Power of State to Enact Unemployment Insurance Raw, 21 Minnesota Raw Review 97; Constitutional Raw — North ‘Carolina Unemployment Compensation, 15 North Carolina Raw Review 407. Veazie Bank v. Fenno, 8 Wall. 533, 19 L.Ed. 482; McCray v. United States, 195 U.S. 27, 24 S.Ct. 769, 49 L.Ed. 78, 1 Ann.Cas. 561; United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493; Child Labor Tax Case, 259 U.S. 20, 42 S.Ct. 449, 66 L.Ed. 817, 21 A.L.R. 1432; Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822; Constitutional Law — Taxation—Federal Tax on Resale of Theatre Tickets, 28 Columbia Law Review 500 (note); Hale, Force and the State: A Comparison of “Political” and “Economic” Compulsion, 35 Columbia Law Review 149. Constitutional Law — The Federal-State System of Unemployment Compensation Under the Social Security Act, 35 Michigan Law Review 1306 (Comment), above cited. Rice, A Note On The Constitutionality of State Unemployment Compensation Laws, 3 Law and Contemporary Problems 138. This article cites : Sayles v. Foley, 38 R.I. 484, 490, 96 A. 340, 343; Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 P. 398; Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, Ann.Cas,1917D, 642; Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 55 L.Ed. 112, 32 L.R.A.,N.S., 1062, Ann.Cas.1912A, 487; Railroad Retirement Board v. Alton R. Co., 295 U.S. 330, 55 S.Ct. 758, 79 L.Ed. 1468. This last ease is noted and discussed in Railroad Retirement Pension Act of 1934, 44 Yale Law Journal 292 (comment); Powell, Commerce, Pensions, and Codes, 49 Harvard Law Review 1. Douglas, Social Security in the United States, p. 274. W. H. H. Chamberlin, Inc., v. Andrews, Industrial Com’r, 271 N.Y. 1, 2 N.E.2d 22; noted in Constitutional Law —Unemployment Insurance — New York Unemployment Insurance Law, 5 Ford-ham Law Review 499. W. H. H. Chamberlin, Inc., v. Andrews, Industrial Com’r, 299 U.S. 515, 57 S.Ct. 122, 81 L.Ed. 380. Gulf States Paper Corp. v. Carmichael (Southern Coal & Coke Co. v. Carmichael)," }, { "docid": "23245336", "title": "", "text": "has frequently arisen, namely, in cases involving the constitutionality of statutes shifting from the plaintiff to the defendant the burden of proof on the issue of contributory negligence, as applied retroactively to alleged torts committed before the date of the enactment. Here the courts, federal as well as state, have upheld the statutes as so applied. Sackheim v. Pigueron, 215 N.Y. 62, 109 N.E. 109; Southern Ind. Ry. v. Peyton, 157 Ind. 690, 693, 61 N.E. 722; Wallace v. Western N. C. R., 104 N.C. 442, 10 S.E. 552; Easterling Lumber Co. v. Pierce, 235 U.S. 380, 35 S.Ct. 133, 59 L.Ed. 279. See Meeker v. Lehigh Valley Rd. Co., 236 U.S. 412, 430, 35 S.Ct. 328, 59 L.Ed. 644, Ann.Cas.1916B, 691; Luria v. United States, 231 U.S. 9, 25-27, 34 S.Ct. 10, 58 L.Ed. 101; Mobile, Jackson & Kansas City Rd. Co. v. Turnipseed, 219 U.S. 35, 42, 31 S.Ct. 136, 55 L.Ed. 78, 32 L.R.A.,N.S., 226, Ann.Cas.1912A, 463; Reitler v. Harris, 223 U.S. 437, 441, 442, 32 S.Ct. 248, 56 L.Ed. 497. The courts say that such statutes introduce no change of the substantive, law rule that contributory negligence is a complete bar to liability, but pertain only to the procedure by which the fact as to contributory negligence is to be established. In Easterling Lumber Co. v. Pierce, supra, a state statute, applicable to railroads, provided that from the proof of the happening of an accident there should arise a prima facie presumption of negligence. Referring to this statute, the Supreme Court said, 235 U.S. at page 382, 35 S.Ct. at page 134, 59 L.Ed. 279: “The objection to the * * * statute is that it was wanting in due process because retroactively applied to the case since the statute was enacted after the accident occurred. But the court below held that the statute cut off no substantive defense but simply provided a rule of evidence controlling the burden of proof. That as thus construed it does not violate the Fourteenth Amendment to the Constitution of the United States is also so conclusively settled as to" }, { "docid": "23586925", "title": "", "text": "or from work upon passes furnished by the carrier, are not received in the course of employment or, otherwise, do not happen to qualify as claims under the Federal Employers’ Liability Act ? We can see none. As the Hepburn Act fixes the fact and measure of responsibility of a railroad in connection with the issuance of a pass and the extent of the right, thereby acquired, by the person to whom issued (Kansas City Southern R. Co. v. Van Zant, supra), it is our conclusion that, under the circumstances here shown, the plaintiff at the time of his injury had the status of a passenger for hire within the intendment of the Hepburn Act and that the release of liability contained on the pass upon which he was riding is, therefore, without legal effect as a bar to his right of action for the defendant’s negligence. Compare the Chatman case supra. That leaves but the question as to whether the proofs support the trial court’s findings as to the defendant’s negligence and the plaintiff’s freedom from contributory negligence. We think that the opinion of the learned court below amply demonstrates that the evidence well justifies the findings of fact which come to us with the conclusiveness of a jury’s verdict. The judgment of the District Court is affirmed. North Carolina R. Co. v. Zachary, 232 U.S. 248, 256, 34 S.Ct. 305, 58 L.Ed. 591, Ann.Cas.1914C, 159; New York Central R. Co. v. Winfield, 244 U.S. 147, 149, 150, 37 S.Ct. 546, 61 L.Ed. 1045, L.R.A.1918C, 439, Ann.Cas.1917D, 1139; New York Central & H. R. R. Co. v. Tonsellito, 244 U.S. 360, 361, 37 S.Ct. 620, 61 L.Ed. 1194. Erie R. Co. v. Welsh, 242 U.S. 303, 308, 37 S.Ct. 116, 61 L.Ed. 319; Shanks v. Delaware, L. & W. R. Co., 239 U.S. 556, 558, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A.1916C, 797; Illinois Central R. Co. v. Behrens, 233 U.S. 473, 478, 34 S.Ct. 646, 58 L.Ed. 1051, Ann.Cas.19140, 163; North Carolina R. Co. v. Zachary, 232 U.S. 248, 251, 34 S.Ct. 305, 58 L.Ed. 591, Ann.Cas.1914C, 159." }, { "docid": "5367658", "title": "", "text": "628. This court, however, has held that the due process clause of the Fifth Amendment extends to the Islands by its own force as a limitation on legislation enacted there. Soto v. United States, supra; Thornberg v. Jorgensen, 3 Cir., 1932, 60 F.2d 471. While the Organic Act of the Virgin Islands which was enacted in 1936 did not extend the Constitution to the Islands (Cf. Alaska and Hawaii, 48 U.S.C.A. §§ 23, 495), it does contain a Bill of Rights which includes a due process and equal protection clause. 48 U.S.C.A. § 1406g. . For presumptions of negligence, see Seaboard Airline Ry. Co. v. Watson, 1932, 287 U.S. 86, 53 S.Ct. 32, 77 L.Ed. 180; Atlantic Coast Line R. Co. v. Ford, 1933, 287 U.S. 502, 53 S.Ct. 249, 77 L.Ed. 457; Hawkins v. Bleakly, 1917, 243 U.S. 210, 37 S.Ct. 255, 61 L.Ed. 678; Easterling Lumber Co. v. Pierce, 1914, 235 U.S. 380, 35 S.Ct. 133. 59 L.Ed. 279. Cf. Western & Atlantic Railroad v. Henderson, 1929, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884. Ear presumptions of criminal or fraudulent intent or knowledge, see Adler v. Board of Education, 1952, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517; Morrison v. California, 1934, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664; Hawes v. State of Georgia, 1922, 258 U.S. 1, 42 S.C. 204, 66 L.Ed. 431. Cf. Manley v. State of Georgia, 1929, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575. For presumptions that findings of fact of a commission or board are correct, see, e.g., Meeker & Co. v. Lehigh Valley R. R., 1915, 236 U.S. 412, 35 S.Ct. 328, 59 L.Ed. 644. See also Oyama v. State of California, 1948, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249; McFarland v. American Sugar Co., 1916, 241 U.S. 79, 36 S.Ct. 498, 60 L.Ed. 899; Bandini Co. v. Superior Court, 1931, 284 U.S. 8, 52 S.Ct. 103, 76 L.Ed. 136; Republic Aviation Corp. v. N. L. R. B., 1945, 324 U.S. 793, 65 S.Ct. 982, 89 L. Ed. 1372. . White v. Tennant," }, { "docid": "23245362", "title": "", "text": "725, so far as it commands anything, commands the federal courts to follow the state law. However this may be, it is not doubted that Congress has power to prescribe the “procedure” for the federal courts, and this would certainly include a power to include within the domain of “procedure” subject-matter falling within the borderland between substance and procedure, and rationally capable of classification within either category. Cf. Rule 43, Federal Rules of Civil Procedure, permitting the federal courts to disregard local exclusionary rules of evidence. See Luria v. United States, 231 U.S. 9, 25-27, 34 S.Ct. 10, 58 L.Ed. 101. See Callahan and Ferguson, Evidence and the New Federal Rules of Civil Procedure, 45 Yale L.J. 622, 627-30; Leach, State Law of Evidence in the Federal Courts, 43 Harv.L.Rev. 554, 583-85. “Rule 8. General Rules Of Pleading * * * (c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. * * * ” Congress in the Act of June 19, 1934 uses “practice and procedure” in contrast with “substantive rights” but does not define these terms. Where statutory language is ambiguous, the courts properly are inclined to adopt the construction put upon the language by the agency charged with carrying out the statute. This would a fortiori be true when, as here, the agency happens to be the Supreme Court of the United States. Cf. Sibbach v. Wilson & Co., 7 Cir., 1939, 108 F.2d 415. In the analogous situation where suit is brought in one state for an alleged tort committed in another, the courts generally classify burden of proof on the issue of contributory negligence as a matter of procedure and apply the lex fori. Levy v. Steiger, 233 Mass. 600, 124 N.E. 477; Chicago Terminal R. R. v. Vandenberg, 164 Ind. 470," }, { "docid": "23245333", "title": "", "text": "of proving, the plaintiff’s contributory negligence, even though the suit arose in a state whose local rule was the contrary. Pokora v. Wabash Railway Co., 292 U.S. 98, 100, 54 S.Ct. 580, 78 L.Ed. 1149; Miller v. Union Pacific, 290 U.S. 227, 232, 233, 54 S.Ct. 172, 78 L.Ed. 285; Hemingway v. Illinois Central Railroad Co., 5 Cir., 114 F. 843, 846; Armour & Co. v. Carlas, 2 Cir., 142 F. 721, 722; New Ætna Portland Cement Co. v. Hatt, 6 Cir., 231 F. 611, 615-16; Harmon v. Barber, 6 Cir., 247 F. 1, 6; Bauman v. Black & White Town Taxis Co., 2 Cir., 263 F. 554; Maher v. Chicago, M. & St. P. Rail way Co., 7 Cir., 278 F. 431, 434; Cook Paint & Varnish Co. v. Hickling, 8 Cir., 76 F.2d 718, 721. See Central Vermont Railroad Co. v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252; First National Bank v. Liewer, 8 Cir., 187 F. 16, 18. They avoided having to apply the local rule under the Conformity Act, R.S. § 914, 28 U.S.C.A. § 724, by saying that burden of proof was not a mere matter of procedure but concerned substantive rights, as to which the federal courts on a matter of “general law” were free to take their own view. See Herron v. Southern Pacific Co., 283 U.S. 91, 93, 94, 51 S.Ct. 383, 75 L.Ed. 857. The question of classification also arose where suit was brought in one state on an alleged tort committed in another state. But here it was generally held, in the state courts at least, that burden of proof as to contributory negligence was a matter of procedure ; hence the rale of the forum would be applied despite a contrary rule of the locus delicti. Levy v. Steiger, 233 Mass. 600, 124 N.E. 477; Smith v. Brown, Mass., 19 N.E.2d 732; Chicago Terminal R. R. v. Vandenberg, 164 Ind. 470, 73 N.E. 990; Rastede v. Chicago, St. P., M. & O. Railway, 203 Iowa 430, 431, 437, 212 N.W. 751; Jenkins v." }, { "docid": "7926474", "title": "", "text": "It may well be that plaintiff made a rather hard bargain with defendant; but with that we have nothing to do, so long as no fraud or deception was practiced and the contract was legal in all respects. Scotch Manufacturing Co. v. Carr [53 Fla. 480] 43 So. 427.” We hold that the last cited provision of the Ringling-Olvera contract exempts the appellants from liability for their ordinary negligence and the court erred in refusing the requested instruction concerning their liability solely for gross negligence. The judgment is reversed. See footnote infra showing the identity of the law of Texas and Kansas with that of Florida on the interpretation of the pertinent contract provisions. Boseman v. Insurance Co., 301 U.S. 196, 202, 203, 206, 57 S.Ct. 686, 81 L.Ed. 1036, 110 A.L.R. 732; Seeman v. Philadelphia Warehouse Co., 274 U.S. 403, 407-409, 47 S.Ct. 626, 71 L.Ed. 1123; Pritchard v. Norton, 106 U.S. 124, 136, 1 S.Ct. 102, 27 L.Ed. 104; Clark v. Gibbs, 5 Cir., 69 F.2d 364, 365; Bertonneau v. Southern Pac. Co., 17 Cal.App. 439, 443, 120 P. 53; Palmer v. Atchison, etc., R.R. Co., 101 Cal. 187, 195, 35 P. 630; Cf. Owens v. Hagenbeck-Wallace Shows Co., 58 R.I. 162, 192 A. 158, 163, 164, 112 A.L.R. 113, 121, 122. Cummer Lumber Co. v. Silas, 98 Fla. 1158, 125 So. 372, 374; Co-operative Sanitary Baking Co. v. Shields, 71 Fla. 110, 70 So. 934; Ingram-Dekle Lumber Co. v. Geiger, 71 Fla. 390, 71 So. 552, 554, Ann.Cas.1918A, 971. Accord : Robinson v. Baltimore & Ohio R. R. Co., 237 U.S. 84, 35 S.Ct. 491, 59 L.Ed. 849; New York Cent. Railroad Co. v. Lockwood, 17 Wall. 357, 21 L.Ed. 627; Long v. Lehigh Valley R. Co., 2 Cir., 130 F. 870; McCormick v. Shippy, 2 Cir., 124 F. 48; Chicago, etc., R. Co. v. Wallace, 7 Cir., 66 F. 506, 30 L.R.A. 161; World’s Columbian Exposition Co. v. Republic of France, 7 Cir., 96 F. 687, 694, 695; Bates v. Railroad Co., 147 Mass. 255, 17 N.E. 633; Hosmer v. Railroad Co., 156 Mass. 506, 31" }, { "docid": "23245334", "title": "", "text": "under the Conformity Act, R.S. § 914, 28 U.S.C.A. § 724, by saying that burden of proof was not a mere matter of procedure but concerned substantive rights, as to which the federal courts on a matter of “general law” were free to take their own view. See Herron v. Southern Pacific Co., 283 U.S. 91, 93, 94, 51 S.Ct. 383, 75 L.Ed. 857. The question of classification also arose where suit was brought in one state on an alleged tort committed in another state. But here it was generally held, in the state courts at least, that burden of proof as to contributory negligence was a matter of procedure ; hence the rale of the forum would be applied despite a contrary rule of the locus delicti. Levy v. Steiger, 233 Mass. 600, 124 N.E. 477; Smith v. Brown, Mass., 19 N.E.2d 732; Chicago Terminal R. R. v. Vandenberg, 164 Ind. 470, 73 N.E. 990; Rastede v. Chicago, St. P., M. & O. Railway, 203 Iowa 430, 431, 437, 212 N.W. 751; Jenkins v. Railway, 124 Minn. 368, 373, 145 N.W. 40; Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053. See Helton v. Alabama Midland, 97 Ala. 275, 12 So. 276; St. Louis & S. F. R. Co. v. Coy, 113 Ark. 265, 168 S.W. 1106; Prinn v. De Rice, 1930, 129 Me. 479, 149 A. 580; Pennsylvania Co. v. McCann, 54 Ohio St. 10, 42 N.E. 768, 31 L.R.A. 651, 56 Am.St.Rep. 695. Contra: Olson v. Omaha & C. B. S. Railway Co., 131 Neb. 94, 267 N.W. 246; Precourt v. Driscoll, 85 N.H. 280, 157 A. 525, 78 A.L.R. 874. Cf. Lykes Bros. SS. Co. v. Esteves, 5 Cir., 89 F.2d 528; Dela ware & Hudson Co. v. Nahas, 3 Cir., 14 F.2d 56. In these two groups of cases the courts were talking about the same thing and labelling it differently, but in each instance. the result was the same; the court was choosing the appropriate classification to enable it to apply its own familiar rule. In another and quite-different setting the question of classification" }, { "docid": "16246775", "title": "", "text": "219, 31 S.Ct. 145, 55 L. Ed. 191; Mobile J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78, 32 L.R.A.,N.S., 226, Ann.Cas,1912A, 463, etc. The question is, therefore, in this case :- Is there a rational connection between the-fact proved (possession of the firearm) and' the ultimate fact presumed (that the firearm-was shipped, transported, or received in interstate commerce) ? And is the inference-of transportation or receipt in interstate-commerce from the fact of possession so-unreasonable as to be purely an arbitrary mandate ? These questions are not easy. Criminal statutes creating presumptions, generally deal with such questions as-knowledge and intent; such as guilty knowledge upon a charge of receiving and;. concealing stolen property. There are numerous authorities upholding the validity of state statutes creating such presumptions. A statute providing that proof of possession of stolen goods would be prima facie evidence of the theft of such goods would probably be valid; but such a statute would not dispense with the necessity of proving that the particular goods had actually been taken from the possession of the owner without his consent. Here, however, the presumption is not that the defendant received the firearm with guilty knowledge that it had been unlawfully transported in interstate commerce ; but the presumption created is that, since he possessed it, it had theretofore been transported or shipped in interstate commerce. The Government only has to prove that the defendant, having been before convicted of a crime of violence, had in his possession a pistol, then the law presumes that it was transported in interstate commerce; and the burden is cast on the defendant to explain such possession to the satisfaction of the jury; otherwise the evidence is sufficient to convict. The Government cites Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 471, 69 L.Ed. 904, convicted of concealing a quantity of opium in August, 1923, after it was unlawful to import it and with knowledge that it had been unlawfully introduced into the United States contrary to the Act of Feb. 9, 1909, as" }, { "docid": "4499515", "title": "", "text": "Sayles v. Foley, 38 R.I. 484, 490, 96 A. 340, 343; Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 P. 398; Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, Ann.Cas,1917D, 642; Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 55 L.Ed. 112, 32 L.R.A.,N.S., 1062, Ann.Cas.1912A, 487; Railroad Retirement Board v. Alton R. Co., 295 U.S. 330, 55 S.Ct. 758, 79 L.Ed. 1468. This last ease is noted and discussed in Railroad Retirement Pension Act of 1934, 44 Yale Law Journal 292 (comment); Powell, Commerce, Pensions, and Codes, 49 Harvard Law Review 1. Douglas, Social Security in the United States, p. 274. W. H. H. Chamberlin, Inc., v. Andrews, Industrial Com’r, 271 N.Y. 1, 2 N.E.2d 22; noted in Constitutional Law —Unemployment Insurance — New York Unemployment Insurance Law, 5 Ford-ham Law Review 499. W. H. H. Chamberlin, Inc., v. Andrews, Industrial Com’r, 299 U.S. 515, 57 S.Ct. 122, 81 L.Ed. 380. Gulf States Paper Corp. v. Carmichael (Southern Coal & Coke Co. v. Carmichael), D.C., 17 F.Supp. 225; Chas. C. Steward Mach. Co. v. Davis, 5 Cir., 89 F.2d 207; cf. Beeland Wholesale Co. v. Kaufman, 234 Ala. 249, 174 So. 516. Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245, 109 A.L.R. 1327; Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279, 109 A.L.R. 1293; cf. Buckstaff Bath House Co. v. McKinley, 308 U.S. 358, 60 S.Ct. 279, 84 L.Ed. 322; W. H. H. Chamberlin, Inc., v. Andrews, 271 N.Y. 1, 2 N.E.2d 22, above cited; Gillum v. Johnson, 7 Cal.2d 744, 62 P.2d 1037, 63 P.2d 810, 108 A.L.R. 595; Beeland Wholesale Co. v. Kaufman, 234 Ala. 249, 174 So. 516, above cited; Lally v. Texas, Tex.Civ.App., 138 S.W.2d 1111; Fidelity-Philadeipbia Trust Co. v. Hines, 337 Pa. 48, 10 A.2d 553; Provident Mutual Life Ins. Co. of Philadelphia v. Unemployment Compensation Commission of New Jersey (Investors’ Syndicate v. Unemployment Compensation Comm.), 126 N.J.L. 348, 19 A.2d 630, decided April 25, 1941. Graves v. New York" }, { "docid": "1694176", "title": "", "text": "Cal.App.2d 592, 52 P.2d 992 (employer was in the insurance business, making money out of premium profits); State v. Boston System Dentists, Ind. Sup., 19 N.E.2d 949 (employer was a corporation authorized to engage in practicing dentistry and the salaried dentists were its servants for hire); Winslow v. Kansas State Board, 115 Kan. 450, 223 P. 308 (employer incorporated for the purpose of maintaining dental quarters, furnishing services of dentist, and selling dental equipment); State v. Bailey Dental Co., 211 Iowa 781, 234 N.W. 260 (corporation maintaining dental offices); People ex rel. Lederman v. Warden of City Prison, 168 App.Div. 240, 152 N.Y.S. 977 (drug store employed physician to give free medical attention to its customers); People v. Painless Parker Dentist, 85 Colo. 304, 275 P. 928 (corporation furnishing dental services through its employee for its profit); People v. United Medical Service, 362 Ill. 442, 200 N.E. 157, 103 A.L.R. 1229 (corporation furnishing medical service on a flat fee to customers for its own profit). See also Hannon v. Siegel-Cooper Co., 167 N.Y. 244, 60 N.E. 597, 52 L.R.A. 429; cf. In re Co-operative Law Co., 198 N.Y. 479, 92 N.E. 15, 32 L.R.A.,N.S., 55, 139 Am.St.Rep. 839, 19 Ann.Cas. 879. State Electro-Medical Institute v. State, 74 Neb. 40, 103 N.W. 1078, 12 Ann.Cas. 673; State Electro-Medical Institute v. Platner, 74 Neb. 23, 103 N.W. 1079, 121 Am.St.Rep. 706; State ex inf. Sager v. Lewin, 128 Mo.App. 149, 106 S.W. 581. 18 U.S.C.A. § 556. United States v. Patten, 226 U.S. 525, 536-539, 33 S.Ct. 141, 57 L.Ed. 333, 44 L.R.A.,N.S., 325; United States v. Pacific & Arctic Ry. & Nav. Co., 228 U.S. 87, 88-94, 33 S.Ct. 443, 57 L.Ed. 742; Knauer v. United States, 8 Cir., 237 F. 8; United States v. Rintelen, D.C., 233 F. 793; United States v. New Departure Mfg. Co., D.C., 204 F. 107, 109, 110; United States v. Patterson, D.C., 201 F. 697, 699-701, rev’d on other grounds but affirmed as to first count of indictment, 6 Cir., 222 F. 599, certiorari denied 238 U.S. 635, 35 S.Ct. 939, 59 L.Ed. 1499; Steers" } ]

[ { "docid": "8459758", "title": "", "text": "the petition at C.A. No. 36,239. Petitioner earlier had filed a petition at C.A. No. 32,323 in the United States District Court for the Eastern District of Pennsylvania which was disposed of by a three-judge court, designated by the undersigned pursuant to §§ 2281 and 2284, Title 28 U.S.C., on the ground that the petition failed to state a claim upon which relief could be granted. See Kirk v. Boehm, D.C., 216 F.Supp. 952, 953 (1963). The decision was affirmed by the Supreme Court, 376 U.S. 512, 84 S.Ct. 967, 11 L.Ed.2d 968 (1964); rehearing denied 377 U.S. 920, 84 S.Ct. 1178, 12 L.Ed.2d 188 (1964). The present petitions allege that the subject matter contained therein is identical to the subject matter of the petition filed at C.A. No. 32,323. It is clear to me that petitioner has not stated a claim upon which relief can be granted and that the designation of a three-judge statutory court is therefore not required. The District Judge to whom all the applications were made wrote me upon July 28 and July 31, 1964, informing me of the present suits, as he did of the suit at C.A. No. 32,323, and he has set forth the petitioner’s claims in his letters and has stated the nature of the application made to him for a three-judge tribunal. He does not state that a three-judge statutory court is necessary in his opinion, but even had he done so, the question ef whether the issues raised are justiciable by a three-judge statutory court is one which .also must be determined by the Chief Judge of the Circuit. In the light of the foregoing, I have concluded that the designation of a three-judge court pursuant to the provisions of §§ 2281 and 2284, Title 28 U.S.C., would be unnecessary and improper. I therefore refuse to designate such a court." } ]

[ { "docid": "8460545", "title": "", "text": "for the Eastern District of Pennsylvania, assuming but not deciding, that that court has jurisdiction of the pending action and assuming further that the doctrine of abstention should not be applied. But a major issue remáins to be determined. Does a chief judge of a circuit possess the power, or the authority or the duty, when notified by a district judge of the circuit that an application has been made to him for an injunction in a case which, in the opinion of the district judge, requires adjudication by a three-judge court pursuant to Sections 2281 and.2284, Title 28 U.S.C., to refuse to designate such a court if in the opinion of the chief judge the notification of the district judge is erroneous and the designation of the two additional judges therefore should not be made. Or should the chief judge of the circuit, ás a ministerial act, without considering the question of whether the case is one adjudicable by a three-judge tribunal, proceed to designate two other judges to make up the three-judge court? If the three-judge district court is erroneously designated and that court as constituted tries the ease a great deal of the time' and energy of judges, counsel and litigants may be wasted. Of course, if the case is not one adjudicable by a three-judge court ordinarily an appeal will not lie to the Supreme Court, 28 U.S.C. § 2101 (b), and the error of the three-judge tribunal in wrongfully assuming jurisdiction and adjudicating the case would have to be corrected by the appropriate court of appeals. It is clear that when a United States district judge has failed to effect the notification or to make the request required by Section 2284(1), the Supreme Court will grant mandamus. See Stratton v. St. Louis S. W. Railway Co., 282 U.S. 10, 16, 51 S.Ct. 8, 75 L.Ed. 135 (1930). But is there a remedy other than an appeal to the Supreme Court to aid the injured litigant in the case where a district judge has given notification to the chief judge of the circuit of the filing" }, { "docid": "1901941", "title": "", "text": "The purpose of the present motion is to get a review by a three-judge court of the action of the single District Judge in dismissing the action for lack of jurisdiction. The question before me does not involve the validity of the action of a District Judge on the merits of a controversy. The first basic question is: Assuming that the District Court lacked jurisdiction to hear the case, could the single judge to whom the application was presented dismiss the complaint on that ground ? Some of the statutes upon which Section 2284 is based were written long ago; one was written in 1942; the revision was made in 1948. Prior to 1948, as I understand it, the Supreme Court held in-several eases that a single judge could-dismiss for lack of jurisdiction without calling, under the procedure then applicable, a three-judge court. It held further that the only available review of the dismissal was by a writ of manda-, mus from the Supreme Court. The movant here says these rules were altered by the statutes of 1942 and 1948. But it is agreed that since the new statutes were enacted this court, in White v. Gates, entertained and considered ans appeal from an order of a single judge of the District Court dismissing an action, and the Fourth Circuit, in Jacobs v. Tawes, discussed the problem and held that an appeal would lie to the Circuit Court of Appeals from an order of a single District Judge dismissing a case for lack of jurisdiction without notifying the Chief Judge of the Circuit of the request for a three-judge court. The Ninth Circuit held to the same effect in Wicks v. Southern Pacific Co., where the initial question was whether a substantial constitutional issue was presented. This brings me to a reading of the statute. Section 2284 opens: “In any action or proceeding required by Act of Congress to be heard and determined by a district court of three judges the composition and procedure of the court, except as otherwise provided by law, shall be as follows: “(1) The district" }, { "docid": "1901943", "title": "", "text": "judge to whom the application for injunction or other relief is presented shall constitute one member of such court. On the filing of the application, he shall immediately notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge. Such judges shall serve as members of the court to hear and determine the action or proceeding.” The argument of the movant is that this section makes clear that the District Judge must, as a purely ministerial duty, immediately notify the Chief Judge of the Circuit of the application for an injunction and that the Chief Judge must then, as a matter of ministerial duty, convene a three-judge court. As I understand the argument, movant says the statute makes perfectly clear that the Court of Appeals, as such, has nothing to do with a three-judge court; that, if the District Judge does not do what the statute tells him to do, then the Chief Judge of the Circuit must act and either forthwith constitute the three-judge court or require the District Judge to comply with the statute. The statute, says mov-ant, contemplates action by the District Judge and the Chief Judge of the Circuit, and by nobody else. Subsection (5) of Section 2284 says: “Any one of the three judges of the court may perform all functions, conduct all proceedings except the trial, and enter all orders required or permitted by the rules of civil procedure. A single judge shall not appoint a master or order a reference, or hear and determine any application for an interlocutory injunction or motion to vacate the same, or dismiss the action, or enter a summary or final judgment. The action of a single judge shall be reviewable by the full court at any time before final hearing.” Movant says, as I understand it, two things about this subsection. First, it says that the second sentence states flatly that a single judge shall not dismiss an action. Second, it says that the subsection, in its last sentence, provides that an action of a" }, { "docid": "18394486", "title": "", "text": "holding that he was without jurisdiction to grant relief. In making such dismissal, the trial court was in error. Where an application for an injunction is made, which, under 28 U.S.C.A. § 2281, can only be granted by a three-judge court, it is the duty of the district judge to whom it is presented, under § 2284(1), to “notify the chief judge of the circuit, who shall designate two other judges * * * There is no requirement in § 2284 that the applicant for the injunction must determine the need for a three-judge court and make request therefor, and no provision that, if this is not done, there is a lack of judicial jurisdiction. The practical, expediting and procedural nature of the statute suggests to the contrary that the legislative intention was that the district judge to whom an application for an injunction is presented must exercise the responsibility not only of determining whether it is in fact a three-judge case or a single-judge matter but also of taking the necessary action on this basis for enabling the case to be disposed of on its-merits. If the case is a three-judge matter, he must make request of the Chief Judge of the Circuit for the constituting of such a court. He may not dismiss. We have expressly held that “a case which requires a three-judge court for any disposition of it on its merits * * * may not * * * over the objection of the plaintiff, be dismissed by a single judge”. Snyder’s Drug Stores v. Taylor, 8 Cir., 227 F.2d 162, 165. But here the error of the trial court in making dismissal was more fundamental than this, for the injunction which appellants sought was not in fact one which required a three-judge court for its issuance. The relief sought was not predicated, nor did it turn, upon any Arkansas statute or statutes being declared to be unconstitutional. 28 U.S.C.A. § 2281, imposing the prescription for a three-judge court as to injunctions related to state statutes, provides: “An interlocutory or permanent injunction restraining the enforcement *" }, { "docid": "8460559", "title": "", "text": "taken until after the ease is tried and where constitutional issues involving federal or state statutes are at issue. The waste of time and energy may be very considerable for the trial court may reach a final judgment only to discover later that it was without jurisdiction to determine the case. The' case at bar, of course, has not been tried. On consideration of all of the factors and being of the opinion that the chief judge of the circuit has the duty to determine judicially whether the case is one which is adjudicable by a three-judge tribunal, as had the district judge to whom the application is made, I conclude, with all respect and esteem for the District Judge who made the request of me, that the action is not one cognizable by a three-judge tribunal, and further that the ends of justice would be best served by my declining to designate two additional judges to complete a three-judge tribunal in this ease. See Kirk v. Board of Education, 236 F.Supp. 1020 (D.C. E.D.Pa. 1964). Consequently, an order to that effect will be filed in the district court concurrently with this opinion. . While there is no direct allegation that Miller was the owner of the truck, nonetheless there is a collateral statement in paragraph 9 of the complaint that it was “his”, Miller’s, “motor vehicle” that was involved in the Maryland accident. . But cf. Meyer License, 33 Dist. & Co.R. 2d 790 (1963). . Which, it is assumed, was Philadelphia. . The provisions of the pertinent sections, Section 120, et seq., of Article 66% of the title, “Motor Vehicles” of the Annotated Code of Maryland, 1957, are more detailed but are not much broader in scope than the corresponding provisions of the Utah Act and the Pennsylvania Act. See Kesler v. Department of Safety, 369 U.S. 153, at 165-168, 82 S.Ct. 807; see also id. at pp. 166-167 at n. 30, 82 S.Ct. 807. . A paragraph of the letter of the District Judge to the Chief Judge states: “There is some doubt in .my mind as" }, { "docid": "19537933", "title": "", "text": "state statutes, see Pub. L. 94-381, § 1, 90 Stat. 1119 (repealing 28 U.S.C. § 2281 ), but was mandated for \"an action ... challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.\" Id., § 3, now codified at 28 U.S.C. § 2284(a). Simultaneously, Congress amended the procedures governing three-judge district courts. The prior statute had provided: \"The district judge to whom the application for injunction or other relief is presented shall constitute one member of [the three-judge] court. On the filing of the application, he shall immediately notify the chief judge of the circuit, who shall designate two other judges\" to serve. 28 U.S.C. § 2284(1) (1970 ed.). The amended statute provides: \"Upon the filing of a request for three judges, the judge to whom the request is presented shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges\" to serve. 28 U.S.C. § 2284(b)(1) (2012 ed.) (emphasis added). The dispute here concerns the scope of the italicized text. B In response to the 2010 Census, Maryland enacted a statute in October 2011 establishing-or, more pejoratively, gerrymandering-the districts for the State's eight congressional seats. Dissatisfied with the crazy-quilt results, see App. to Pet. for Cert. 23a, petitioners, a bipartisan group of citizens, filed suit pro se in Federal District Court. Their amended complaint alleges, inter alia, that Maryland's redistricting plan burdens their First Amendment right of political association. Petitioners also requested that a three-judge court be convened to hear the case. The District Judge, however, thought the claim \"not one for which relief can be granted.\" Benisek v. Mack, 11 F.Supp.3d 516, 526 (D.Md.2014). \"[N]othing about the congressional districts at issue in this case affects in any proscribed way [petitioners'] ability to participate in the political debate in any of the Maryland congressional districts in which they might find themselves. They are free to join preexisting political committees, form new ones, or use whatever other means are at their disposal to influence the opinions of their congressional" }, { "docid": "19537932", "title": "", "text": "Justice SCALIA delivered the opinion of the Court. We consider under what circumstances, if any, a district judge is free to \"determin[e] that three judges are not required\" for an action \"challenging the constitutionality of the apportionment of congressional districts.\" 28 U.S.C. §§ 2284(a), (b)(1). I A Rare today, three-judge district courts were more common in the decades before 1976, when they were required for various adjudications, including the grant of an \"interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute ... upon the ground of the unconstitutionality of such statute.\" 28 U.S.C. § 2281 (1970 ed.), repealed, Pub. L. 94-381, § 1, 90 Stat. 1119. See Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 3-12 (1964). Decisions of three-judge courts could, then as now, be appealed as of right directly to this Court. 28 U.S.C. § 1253. In 1976, Congress substantially curtailed the circumstances under which a three-judge court is required. It was no longer required for the grant of an injunction against state statutes, see Pub. L. 94-381, § 1, 90 Stat. 1119 (repealing 28 U.S.C. § 2281 ), but was mandated for \"an action ... challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.\" Id., § 3, now codified at 28 U.S.C. § 2284(a). Simultaneously, Congress amended the procedures governing three-judge district courts. The prior statute had provided: \"The district judge to whom the application for injunction or other relief is presented shall constitute one member of [the three-judge] court. On the filing of the application, he shall immediately notify the chief judge of the circuit, who shall designate two other judges\" to serve. 28 U.S.C. § 2284(1) (1970 ed.). The amended statute provides: \"Upon the filing of a request for three judges, the judge to whom the request is presented shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges\" to serve. 28 U.S.C. § 2284(b)(1) (2012 ed.) (emphasis added). The dispute here" }, { "docid": "20544495", "title": "", "text": "Counts I and II of the complaint in that case attacked the constitutionality of two Georgia criminal statutes; Count III alleged a conspiracy to deny plaintiffs their constitutional rights by maintaining school segregation. The court recognized that its jurisdiction under § 2281 was founded on Counts I and II and determined “as a matter of discretion” to exercise jurisdiction over Count III. The court elected to exercise jurisdiction because the three counts were “so interrelated as to present one continuous transaction or set of operative facts * * 255 F. Supp. at 731. In all these cases, the consideration given to the scope of three-judge jurisdiction was almost casual. The most careful consideration yet reported is in an order of Chief Judge Bazelon of the District of Columbia-Circuit. See Hobson v. Hansen, 256 F.Supp. 18 (D.C.Cir. 1966). Pursuant to 28 U.S.C. § 2284, Judge Bazelon was requested to convene a three-judge court to hear and determine an application for an injunction restraining school officials of the District of Columbia. Count I of the complaint challenged the constitutionality of an act of Congress prescribing the method of appointing the board of education for the district. Counts II through VI sought the abatement of alleged racial and economic discrimination by school authorities. Judge Bazelon, exercising his authority under § 2284 to determine whether substantial constitutional issues were raised, had convened a three-judge court and referred only Count I to it, leaving Counts II through VI to be heard by a single-judge court. Defendants then moved for an order referring Counts II through VI to the three-judge court on the ground that a three-judge court, once impaneled under 28 U.S.C. § 2284, has complete jurisdiction over the entire case and neither a single-judge court nor the chief judge of the circuit has the power to divest the three-judge court of its jurisdiction. Judge Bazelon denied the motion. According to his opinion, there are two rationale for broad three-judge jurisdiction. First, grounds other than the constitutional invalidity of a statute should be available to the three-judge court so that it may, if possible, avoid" }, { "docid": "8460555", "title": "", "text": "the district judge to mere ministerial action. But it has been demonstrated in the preceding paragraph that his notifying of the chief judge requires the exercise of a judicial act on his part. He performs that act in the light of the record paragraph quoted. A narrow reading of the second paragraph, “(1)”, would require the chief judge forthwith and in all events to designate two other judges. Again the word employed by Congress is “shall”: i. e. the chief judge, on receiving the request of the district judge for a three-judge court, the notification, “shall designate two other judges.” But this is too narrow a reading. The chief judge must perform his functions in the light of the first paragraph of Section 2284 quoted above: i. e., he must, as a judicial act determine that the proceeding or case in which the three-judge court is sought to be invoked, is actually one requiring adjudication by a three-judge tribunal. There, there fore, must be two judicial acts performed before a three-judge court may be constituted : the first by the district judge; the second by the chief judge of the circuit. The constituting of a three-judge court requires two separate acts of judicial judgment as indicated, neither merely ministerial. This conclusion, if it be correct, should effect a saving in the time and energy of litigants, of counsel and of judges. I conclude for the reasons heretofore stated that this is not a case which requires a three-judge court to adjudicate it. I therefore decline to designate two judges to sit with the judge to whom the application for a three-judge court was made. If I am in error the remedy, I think, should be by way of a writ of mandamus directed by the Supreme Court to me as the chief judge of the circuit. If the district judge to whom the application was made should agree with the view expressed in this opinion I can perceive no reason why he cannot now rescind the request he made to me for a three-judge tribunal, Eastern States Petroleum Corporation v." }, { "docid": "8460558", "title": "", "text": "F.2d 427, 432-433 (3 Cir. 1959). But if the appeal was to the Court of Appeals of this Circuit and the case is in reality one which is cognizable only by a three-judge tribunal, the Court of Appeals could decide only the very limited issue as to whether or not it had jurisdiction to entertain and adjudicate the appeal and could only vacate an improvident order of the single district judge tribunal as was. done in the Two Guys case, supra. Such a course would hardly prove helpful here. If the case now pending in the district court is in fact a three-judge case and .the district judge had refused to request me, as chief judge of the circuit, to designate two additional judges to constitute a three-judge tribunal, relief to the suitor, would be by way of mandamus directed to the district judge from the Supreme Court of the United States. The waste of the time and energy of litigants, of counsel and of judges will occur in those cases where no appeal is taken until after the ease is tried and where constitutional issues involving federal or state statutes are at issue. The waste of time and energy may be very considerable for the trial court may reach a final judgment only to discover later that it was without jurisdiction to determine the case. The' case at bar, of course, has not been tried. On consideration of all of the factors and being of the opinion that the chief judge of the circuit has the duty to determine judicially whether the case is one which is adjudicable by a three-judge tribunal, as had the district judge to whom the application is made, I conclude, with all respect and esteem for the District Judge who made the request of me, that the action is not one cognizable by a three-judge tribunal, and further that the ends of justice would be best served by my declining to designate two additional judges to complete a three-judge tribunal in this ease. See Kirk v. Board of Education, 236 F.Supp. 1020 (D.C. E.D.Pa." }, { "docid": "5427908", "title": "", "text": "It has been said by the Fifth Circuit that except for situations in which there can be absolutely no doubt at all that there is no constitutional issue, the request for a three-judge court must be granted. Jackson v. Choate, 404 F.2d 910, 912-913 (5th Cir. 1968). But despite the protestations of Chief Judge Brown in Jackson that this is the better course, he does admit that it inevitably leads to unwarranted expenditures of judicial energy. And it has been rejected in other Circuits. The Third Circuit, through Chief Judge Biggs, refused to adopt the Fifth Circuit’s “no-doubt-at-all” test, and holds that when an application is made which might require adjudication by a three-judge court, both the district judge and the chief judge of the circuit, each acting separately, must perform the judicial function of judging and concluding, as a matter of law, whether the pending case raises a substantial constitutional issue and therefore requires three judges for its adjudication. Miller v. Smith, 236 F.Supp. 927, 933 (E.D.Penn. 1964). The First Circuit, speaking through Chief Judge Aldrich, has stated what we believe to be the correct rule. Judge Aldrich discusses both the Third and the Fifth Circuit views and, rejecting the Fifth Circuit’s “no-doubt-at-all” test, holds that “in determining whether a complaint alleges a case appropriate for a three-judge court, the district judge performs a judicial, as distinguished from a ministerial, function,” and accordingly, he must ascertain whether the “request possesses a reasonable degree of legal merit.” But contrary to the Third Circuit’s view, Judge Aldrich goes on to say that once the district judge finds that a three-judge court should be convened, and once the request has been formally made by the district judge, then the chief judge’s duty is “solely ministerial” for the reason that “it is the district judge’s case, 28 U.S.C. § 2284(1), whereas unless the chief judge designates himself, his contact with the case is merely ephemeral.” Merced Rosa v. Herrero, 423 F.2d 591, 593 (1st Cir. 1970). Moreover, we must always proceed with great caution and reluctance in reviewing the request for a three-judge" }, { "docid": "16676535", "title": "", "text": "remedy lies in a mandamus action in the United States Supreme Court. There is no case on point and there is little case law which directly supports our conclusion that review of the chief judge’s decision is available only by filing a petition for a writ of mandamus in the Supreme Court. Some support, however, is found in analogous case law addressing the role of the chief judge of the circuit in the designation of three-judge courts pursuant to 28 U.S.C. § 2284 (1965). Section 2284(a) contemplated that when a request for a three-judge panel was submitted to a district judge that judge must determine whether it was appropriate to convene the three-judge court before he notified the chief judge of the circuit. Two chief judges adopted the view that upon receipt of a request to convene a three-judge court the chief judge had the duty to make an independent determination whether a three-judge panel was indeed appropriate. Further, these chief judges concluded that their respective decisions to constitute a three-judge panel were reviewable only by means of a mandamus to the Supreme Court. Hobson v. Hansen, 256 F.Supp. 18, 19 n.2 (D.C.1966); Kirk v. Board of Education, 236 F.Supp. 1020 (E.D.Pa.1964); Miller v. Smith, 236 F.Supp. 927, 931, 934 (E.D.Pa.), leave to file a petition for mandamus refused, 382 U.S. 805, 86 S.Ct. 92, 15 L.Ed.2d 113 (1965). Recent revisions in the three-judge court statutes have greatly reduced the number of occasions on which they can be convened. Of sufficient importance to the present discussion, however, is the conclusion that if a statute imposes a specific duty upon the chief judge of a circuit there is no remedy for review of his decision as such other than an application to the Supreme Court for mandamus. Under the language of the statute under consideration, the duty of considering approval of payment in excess of the statutory maximum limitation is imposed on the chief judge. 18 U.S.C. § 3006A(d)(3). We cannot conclude that this duty is solely ministerial and therefore conclude that review of the decision of the chief judge to" }, { "docid": "1901940", "title": "", "text": "lacked jurisdiction over the law suit, that exclusive jurisdiction to review the matter of this import tax was in the Customs Court, the Court of Customs and Patent Appeals, and the Supreme Court. The District Court on that basis dismissed the complaint. •. Then arose the question: What is the procedure by which review can be had of the District Court’s failure to notify the Chief Judge of the Circuit of the filing of an application for an injunction so that a three-judge court might be convened? That controversy revolves about Section 2284, Title 28, United States Code. The possibilities are: (1) a petition for mandamus might lie to the Supreme Court; (2) an appeal from the order of dismissal might be taken to the Court of Appeals for the Circuit; and (3) the alternative presented to me today, that the Chief Judge of the Circuit either directly convene a three-judge court or mandamus the District Court to give the necessary statutory notice to the Chief Judge so that he may convene a three-judge court. The purpose of the present motion is to get a review by a three-judge court of the action of the single District Judge in dismissing the action for lack of jurisdiction. The question before me does not involve the validity of the action of a District Judge on the merits of a controversy. The first basic question is: Assuming that the District Court lacked jurisdiction to hear the case, could the single judge to whom the application was presented dismiss the complaint on that ground ? Some of the statutes upon which Section 2284 is based were written long ago; one was written in 1942; the revision was made in 1948. Prior to 1948, as I understand it, the Supreme Court held in-several eases that a single judge could-dismiss for lack of jurisdiction without calling, under the procedure then applicable, a three-judge court. It held further that the only available review of the dismissal was by a writ of manda-, mus from the Supreme Court. The movant here says these rules were altered by the" }, { "docid": "8460544", "title": "", "text": "77, 77 L.Ed. 148] ; Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 [53 S.Ct. 549, 550, 77 L.Ed. 1062]. The question may be plainly unsubstantial, either because it is ‘obviously without merit’ or beeausé ‘its unsoundness so clearly results from the previous decisions of this court, as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.’ Levering & Garrigues Co. v. Morrin, supra; Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 [30 S.Ct. 326, 54 L.Ed. 482] ; McGilvra v. Ross, 215 U.S. 70, 80 [30 S.Ct. 27, 54 L.Ed. 95].” Here no substantial issue as to the constitutionality of the' Pennsylvania statutes remains to be adjudicated because the Supreme Court has already decided that issue unfavorably to1 Miller in the Kesler decision. The issues as to whether Miller’s right to operate a motor vehicle or to register ownership thereof were lawfully suspended may be decided by a single judge of the United States District Court for the Eastern District of Pennsylvania, assuming but not deciding, that that court has jurisdiction of the pending action and assuming further that the doctrine of abstention should not be applied. But a major issue remáins to be determined. Does a chief judge of a circuit possess the power, or the authority or the duty, when notified by a district judge of the circuit that an application has been made to him for an injunction in a case which, in the opinion of the district judge, requires adjudication by a three-judge court pursuant to Sections 2281 and.2284, Title 28 U.S.C., to refuse to designate such a court if in the opinion of the chief judge the notification of the district judge is erroneous and the designation of the two additional judges therefore should not be made. Or should the chief judge of the circuit, ás a ministerial act, without considering the question of whether the case is one adjudicable by a three-judge tribunal, proceed to designate two other judges to make up the three-judge court?" }, { "docid": "8460552", "title": "", "text": "duty of the judges so designated to participate in such hearing and determination.” It will be noted that for the first time in this Act the senior circuit judge, now the chief judge of the circuit, is brought into the procedure and plays a decisive part. The amendments effected by the Act of April 6, 1942, 56 Stat. 198-9, are not pertinent and for that reason they are not set out or discussed here. The final pertinent changes to the procedure for- selecting three-judge courts were effected by Section 2284 of Title 28 of the United States Code which as presently constituted was enacted in 1948 as a complete revision of the prior statutes on the subject. The provisions of Section 2284 are, of course, substantive law but there are no substantial differences between the provisions of Section 2284 as it presently exists and those of Section 3 of the Act of August 24, 1937, 50 Stat. 752. The relevant portions of Section 2284 are as follows: “Three-judge district court; composition; procedure. In any action or proceeding required by Act of Congress to be heard and determined by a district court of three judges the composition and procedure of the court, except as otherwise provided by law, shall be as follows: “(1) The district judge to whom the application for injunction or other relief is presented shall constitute one member of such court. On the filing of the application, he shall immediately notify the chief judge of the circuit who shall designate two other judges, at least one of whom shall be a circuit judge. Such judges shall serve as members of the court to hear and determine the action or proceeding.” The second paragraph quoted, under “(1)” supra, must be read in the light of and must be deemed to be modified and governed by the first paragraph quoted. On the filing of the application to the district judge, when a proceeding has been filed which requires a three-judge court for its adjudication, the district judge must notify the chief judge of the circuit that there is a case" }, { "docid": "15549540", "title": "", "text": "Injunctive relief is also sought against the defendants impeding plaintiffs and the class members they represent from exercising their constitutional rights. Also, plaintiffs ask that such three-judge court enjoin further proceedings in the Circuit Court for Dorchester County in pending eases instituted pursuant to the aforementioned indictments. Section 2281 of 28 U.S.C. is the first section of Chapter 155 of Title 28. That chapter is entitled “Injunctions; Three- Judge Courts” and that said section provides : An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title. Section 2284 of 28 U.S.C. provides, in part: In any action or proceeding required by Act of Congress to be heard and determined by a district court of three judges the composition and procedure of the court, except as otherwise provided by law, shall be as follows: (1) The district judge to whom the application for injunction or other relief is presented shall constitute one member of such court. On the filing of the application, he shall immediately notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge. Such judges shall serve as members of the court to hear and determine the action or proceeding. Under 28 U.S.C. §§ 2281 and 2284(1) this Court is required to ask the Chief Judge of the United States Circuit Court for the Fourth Circuit to convene a three-judge District Court only if there is a substantial, non-frivolous attack upon the constitutionality of a Maryland statute, but not otherwise. Swift & Co. v. Wickham, 382 U.S. 111, 115, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965) ;" }, { "docid": "16676534", "title": "", "text": "compensation or reimbursement than the amount requested or of the decision by the chief judge of the circuit denying approval of the full amount certified by the court in which the representation was rendered. We note that there are presently pending several appeals from allowances by a district court of amounts less than requested. We leave any question of jurisdiction of those appeals to a later date. Where a circuit judge, acting for this Court, has allowed or certified compensation or reimbursement less than requested, we conclude that a petition for rehearing, with or without an en bane suggestion, is appropriate. Similarly, when the chief judge of the circuit has approved compensation or reimbursement less than that amount certified by the court in which the representa tion was rendered, counsel may request reconsideration by motion. However, this motion is addressed solely to the chief judge. Upon disposition of the request for the chief judge to review his decision, further review of the chief judge’s decision is not available from this Court and any counsel’s further remedy lies in a mandamus action in the United States Supreme Court. There is no case on point and there is little case law which directly supports our conclusion that review of the chief judge’s decision is available only by filing a petition for a writ of mandamus in the Supreme Court. Some support, however, is found in analogous case law addressing the role of the chief judge of the circuit in the designation of three-judge courts pursuant to 28 U.S.C. § 2284 (1965). Section 2284(a) contemplated that when a request for a three-judge panel was submitted to a district judge that judge must determine whether it was appropriate to convene the three-judge court before he notified the chief judge of the circuit. Two chief judges adopted the view that upon receipt of a request to convene a three-judge court the chief judge had the duty to make an independent determination whether a three-judge panel was indeed appropriate. Further, these chief judges concluded that their respective decisions to constitute a three-judge panel were reviewable only" }, { "docid": "1901942", "title": "", "text": "statutes of 1942 and 1948. But it is agreed that since the new statutes were enacted this court, in White v. Gates, entertained and considered ans appeal from an order of a single judge of the District Court dismissing an action, and the Fourth Circuit, in Jacobs v. Tawes, discussed the problem and held that an appeal would lie to the Circuit Court of Appeals from an order of a single District Judge dismissing a case for lack of jurisdiction without notifying the Chief Judge of the Circuit of the request for a three-judge court. The Ninth Circuit held to the same effect in Wicks v. Southern Pacific Co., where the initial question was whether a substantial constitutional issue was presented. This brings me to a reading of the statute. Section 2284 opens: “In any action or proceeding required by Act of Congress to be heard and determined by a district court of three judges the composition and procedure of the court, except as otherwise provided by law, shall be as follows: “(1) The district judge to whom the application for injunction or other relief is presented shall constitute one member of such court. On the filing of the application, he shall immediately notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge. Such judges shall serve as members of the court to hear and determine the action or proceeding.” The argument of the movant is that this section makes clear that the District Judge must, as a purely ministerial duty, immediately notify the Chief Judge of the Circuit of the application for an injunction and that the Chief Judge must then, as a matter of ministerial duty, convene a three-judge court. As I understand the argument, movant says the statute makes perfectly clear that the Court of Appeals, as such, has nothing to do with a three-judge court; that, if the District Judge does not do what the statute tells him to do, then the Chief Judge of the Circuit must act and either forthwith constitute" }, { "docid": "8460546", "title": "", "text": "If the three-judge district court is erroneously designated and that court as constituted tries the ease a great deal of the time' and energy of judges, counsel and litigants may be wasted. Of course, if the case is not one adjudicable by a three-judge court ordinarily an appeal will not lie to the Supreme Court, 28 U.S.C. § 2101 (b), and the error of the three-judge tribunal in wrongfully assuming jurisdiction and adjudicating the case would have to be corrected by the appropriate court of appeals. It is clear that when a United States district judge has failed to effect the notification or to make the request required by Section 2284(1), the Supreme Court will grant mandamus. See Stratton v. St. Louis S. W. Railway Co., 282 U.S. 10, 16, 51 S.Ct. 8, 75 L.Ed. 135 (1930). But is there a remedy other than an appeal to the Supreme Court to aid the injured litigant in the case where a district judge has given notification to the chief judge of the circuit of the filing of a case which on the pleading requires adjudication by a three-judge court and the chief judge erroneously fails or refuses to act upon the notification by constituting such a court? I conclude that the remedy of mandamus is available and that the Supreme Court would issue such a writ to a chief judge who failed to act. But this brings us back to the underlying problem. Is the act of the chief judge of the circuit in designating two other judges to sit with the district judge to whom the. application for a three-judge court was madé a purely ministerial one as suggested in the preceding paragraph but one, or does the chief judge have the power and the duty, as does the district judge to whom the application was made, to determine whether or not the case upon which the district judge’s notification is founded is a three-judge case in reality? The question may be stated in another way as follows. Is there the instant requirement of a three-judge court as soon as" }, { "docid": "2100008", "title": "", "text": "court is requested pursuant to Title 28, U.S.C. Sections 2281 and 2284. Also, plaintiffs seek a declaratory judgment to the effect that the disorderly conduct ordinance of the City of Pittsburgh, Ordinance 580 of 1968, is unconstitutional on its face. Pending a hearing upon the requests for final relief, a preliminary injunction is sought. The immediate question before the Court is whether a three-judge district court is properly to be convened in this action. Section 2284 of 28 U.S.C. provides, in part: “§ 2284. Three-judge district court; composition; procedure In any action or proceeding required by Act of Congress to be heard and determined by a district court of three judges the composition and procedure of the court, except as otherwise provided by law, shall be as follows: (1) The district judge to whom the application for injunction or other relief is presented shall constitute one member of such court. On the filing of the application, he shall immediately notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge. Such judges shall serve as members of the court to hear and determine the action or proceeding.” Under 28 U.S.C. Sections 2281 and 2284(1) this Court is required to ask the Chief Judge of the United States Court of Appeals for the Third Circuit to convene a three-judge district court only if there is a substantial, non-frivolous attack upon the constitutionality of a Pennsylvania statute but not otherwise. Swift & Co. v. Wickham, 382 U.S. 111, 115, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794; Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152 (1933). The term “statute” as employed in Section 2281, does not encompass municipal ordinances. Moody v. Flowers, 387 U.S. 97, 101-102, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1966); Ex parte Collins, 277 U.S. 565, 567, 48 S.Ct. 585, 72 L.Ed. 990 (1928). Here, plaintiffs have joined claims challenging the constitutionality of statutes of the" } ]

[ { "docid": "4608742", "title": "", "text": "was worth less than the amount that the purchaser paid for it, and that the purchaser only paid the price he did because he was purchasing an intangible asset as well as the equipment. Therefore, Romley argued, an evidentiary hearing was required to determine the “real” value of the equipment. The bankruptcy court entered partial summary judgment in favor of the Banks, finding that the $230,000 in proceeds from the sale represented the value of the equipment. The court determined that a court approved sale of assets conclusively determines the value of those assets. The partial summary judgment was certified as a final judgment in accordance with Fed.R.Civ.P. 54(b). Romley appealed to the Bankruptcy Appellate Panel of the Ninth Circuit. The BAP affirmed, and entered judgment on March 21, 1988. This appeal was timely filed. STANDARD OF REVIEW We review decisions of the Bankruptcy Appellate Panel de novo. In re Bialac, 712 F.2d 426 (9th Cir.1983); Both the BAP and this court review the Bankruptcy Court’s decision to grant summary judgment de novo. In re California Canners and Growers, 62 B.R. 18, 18-19 (9th Cir. BAP 1986). The standard for granting summary judgment in an adversarial bankruptcy proceeding is the same as under Rule 56(c). F.R.Bankr.P. 7056. Summary judgment is appropriate if, in viewing the evidence in the light most favorable to the party opposing the motion, the court finds that there is no genuine issue of material fact. Lundy v. Union Carbide Corp., 695 F.2d 394, 396 (9th Cir.1982). DISCUSSION Romley argues that the grant of summary judgment was improper because the valuation of assets is always a factual question. He contends the bankruptcy court erred in fixing a value for the property without holding a full evidentiary hearing in which other factors influencing the value could have been considered. Specifically, Romley challenges the bankruptcy court’s refusal to consider two factors. First, he argues the court should have considered appraisals he had gotten on the equipment prior to the sale which stated various estimated values for the equipment depending upon how the equipment was sold. Second, Romley contends the" } ]

[ { "docid": "1101947", "title": "", "text": "OPINION MEYERS, Bankruptcy Judge: I This appeal raises the question whether a secured creditor must notify a guarantor before sale of collateral. The trial court concluded that guarantors are “debtors” under Section 9105(l)(d) of the California Commercial Code, thereby entitling them to notice and other protections under Section 9504(3) and that any pre-default waiver of notice executed by guarantors is ineffective. Accordingly, the trial court held that the secured creditor’s deficiency claim against the guarantors was barred under California law and, finding no material issues of fact remaining, granted summary judgment for the guarantors. The Panel reviews a grant of summary judgment de novo. In re Washburn & Roberts, Inc., 795 F.2d 870, 872 (9th Cir.1986); In re Pacific Exp. Inc., 69 B.R. 112, 114 (9th Cir.BAP 1986). We AFFIRM. II FACTS Appellant Security Pacific National Bank (“Security Pacific”) entered into an unsecured credit agreement with Cascade Oil Company (“Cascade”), establishing a $1,450,000 line of credit. Appellees Larry Kirkland, Cascade’s president and major shareholder, and his wife, signed an unsecured general continuing guaranty expressly waiving all notices and giving Security Pacific the power to substitute, release, decrease or alter any collateral. Cascade first defaulted on March 31, 1981. Pursuant to a workout agreement, Cascade executed a security agreement providing Security Pacific with a secured interest in certain real property of Cascade. Security Pacific extended the credit line period to May 29, 1981. The security agreement expressly renounced any right to notice of sale of the collateral. The Kirklands, as guarantors, consented to the collateralization in a letter agreement which provided that the “collateralization does not affect or diminish ... [the Kirk-lands’] obligations under the general Continuing Guaranty ... Security Pacific rejected Cascade’s repayment proposal and the obligation was again in default. As part of a second workout arrangement, Security Pacific obtained from the Kirklands security for the previously unsecured guaranty in a second letter agreement dated June 8, 1981. The new agreement provided that the original continuing guaranty “shall remain in full force and effect.” Security Pacific again extended the obligation, agreeing to a six-month moratorium until September 15, 1981." }, { "docid": "23373374", "title": "", "text": "the debt nondis-chargeable pursuant to § 523(a)(6). Kelly timely filed his notice of appeal. II. ISSUES A. Whether the bankruptcy court erred by giving collateral estoppel effect to the state court judgment. B. Whether the appellee should be sanctioned for his failure to cite to, and his mis-characterization of, the record. III. STANDARD OF REVIEW A grant of summary judgment is reviewed de novo. Halverson v. Skagit County, 42 F.3d 1257, 1260 (9th Cir.1994); In re Zelis, 161 B.R. 469, 472 (9th Cir. BAP 1993). An appellate court’s review is governed by the same standard used by the trial courts under Fed.R.Civ.P. 56(c). Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Fed.R.Civ.P. 56 is made applicable to bankruptcy proceedings through Fed.R.Bankr.P. 7056. An appellate court 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 trial court correctly applied the relevant substantive law. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). The panel applies a de novo standard for reviewing the question of the availability of collateral estoppel. In re Berr, 172 B.R. 299, 304 (9th Cir. BAP 1994). IV. DISCUSSION A. Collateral Estoppel In order for a prior judgment to be entitled to collateral estoppel effect, five elements must be met : 1) The issue sought to be precluded from relitigation must be identical to that decided in a former proceeding; 2) The issue must have been actually litigated in the former proceeding; 3) It must have been necessarily decided in the former proceeding; 4) The decision in the former proceeding must be final and on the merits; and 5) The party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. Clark v. Bear Stearns & Co., Inc., 966 F.2d 1318, 1320 (9th Cir.1992); Berr, 172 B.R. at 306; Gikas v. Zolin, 25 Cal.Rptr.2d 500, 505, 863 P.2d 745, 750 (1993) (quoting Lucido v. Superior Court, 51 Cal.3d 335, 272 Cal.Rptr.767, 769, 795 P.2d 1223, 1225 (1990)," }, { "docid": "19209945", "title": "", "text": "Facial Substantive Due Process Challenge A Standard of Review The district court granted summary judgment for the City with respect to the Kawaokas’ facial challenges. A grant of summary judgment is reviewed de novo. Jones v. Union Pac. R. Co., 968 F.2d 937, 940 (9th Cir.1992); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 629 (9th Cir.1987). Our review is governed by the same standard used by the trial court under Federal Rule of Civil Procedure 56(c). Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). 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. Federal Deposit Ins. Corp. v. O’Melveny & Meyers, 969 F.2d 744, 747 (9th Cir.1992); Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). To establish a violation of substantive due process, the Kawaokas are required to prove that the City’s general plan or temporary water moratorium was “‘clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.’ ” Sinaloa Lake, 882 F.2d at 1407 (quoting Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926)). Legislative acts that do not impinge on fundamental rights or employ suspect classifications are presumed valid, and this presumption is overcome only by a “clear showing of arbitrariness and irrationality.” Hodel v. Indiana, 452 U.S. 314, 331-32, 101 S.Ct. 2376, 2387, 69 L.Ed.2d 40 (1981); see also Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462, 108 S.Ct. 2481, 2489, 101 L.Ed.2d 399 (1988); Greenbriar, Ltd. v. Alabaster, 881 F.2d 1570, 1577 n. 14 (11th Cir.1989). In a substantive due process challenge, we do not require that the City’s legislative acts actually advance its stated purposes, but instead look to whether “ ‘the governmental body could have had no legitimate reason for its decision.’ ” Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 690 (9th Cir.1993) (citing Shelton v." }, { "docid": "22834763", "title": "", "text": "by Fed.R.Civ.P. 58. Finally, Appellees maintained that even if the parties could be deemed to have waived the separate document requirement, the Fullers’ appeal of the summary judgment order was untimely under Federal Rules of Appellate Procedure 4(a). A motions panel of this court denied Appellees’ motion and granted them leave to file a late appellees’ brief. STANDARD OF REVIEW A district court’s denial of a motion for reconsideration under Fed.R.Civ.P. 59(e) is construed as a denial of relief under Fed.R.Civ.P. 60(b). As such, it will not be reversed absent an abuse of discretion. Fiester v. Turner, 783 F.2d 1474, 1475-76 (9th Cir.1986). We review the district court’s grant of summary judgment in favor of the City and officers de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir.1989). 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. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989); Judie v. Hamilton, 872 F.2d 919, 920 (9th Cir.1989). DISCUSSION I. Jurisdiction While we give deference to motions panel decisions made in the course of the same appeal, we have an independent duty to decide whether we have jurisdiction. Schlegel v. Bebout, 841 F.2d 937, 941 (9th Cir.1988). In this case, we agree with the motions panel ruling. The district court’s Rule 54(b) certification order does not amount to a jurisdictional defect simply because the court did not include specific findings regarding the appropriateness of the certification. See Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 732 n. 1 (9th Cir.1987). While a separately entered judgment is not a prerequisite to appellate jurisdiction, such a judgment is in any case waived where, as here, parties fail to timely object to the appeal on that ground. Allah v. Superior Court, 871 F.2d 887, 890 and n. 1 (9th Cir.1989). II. The Motion For Reconsideration On May 15, 1989, two months after the district court" }, { "docid": "23208077", "title": "", "text": "of probable cause. The California Supreme Court denied review and ordered the appellate decision depublished. Neither blood sample was ever tested. A jury unanimously acquitted Barlow of the criminal charges. He then filed this suit in state court. The defendants removed the case to the federal district court. The district court granted the defendants’ motion for summary judgment, and Barlow filed this timely appeal. II We review de novo a grant of summary judgment. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Summary judgment is proper where “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 reverse a grant of summary judgment if, viewing the evidence in the light most favorable to the non-moving party, there are genuine issues of material fact or if the district court erroneously applied the relevant law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). III We consider first the issues arising out of Barlow’s arrest at the parade. We hold that the district court improperly granted summary judgment to the defendants on the issue of the propriety of the detention and arrest of Barlow, the reasonableness of the force used, the availability of qualified immunity, and the question whether Barlow can recover as damages the expenses he incurred in his successful defense against the criminal charges. A The district court held that on the basis of the undisputed facts, the officers had proper grounds to detain Barlow and probable cause to arrest him. We disagree. The fourth amendment permits police to detain an individual only if they have an articulable and reasonable suspicion that the individual has committed or is about to commit a crime. United States v. Woods, 720 F.2d 1022, 1026 (9th Cir.1983). To arrest an individual, police need more than a reasonable suspicion; they must have probable cause. Probable cause to arrest exists when \"under the totality of the circumstances known to the arresting officers, a prudent person would have concluded that there was a" }, { "docid": "15383395", "title": "", "text": "PER CURIAM: Plain tiff-appellant Norman E. Tedder (Tedder) appeals pro se from the district court’s grant of summary judgment in favor of defendants Edward Odel (Odel) and James S. McAlister (McAlister). Tedder brought an action under 42 U.S.C. § 1983 and § 1985(3) alleging that McAlister, an assistant attorney general for the state of Oregon, told Odel, an officer at the Oregon State Penitentiary, not to honor a subpoena to testify in a civil rights case Tedder had filed against another prison guard. The district court held that because the subpoena was invalid, McAlister’s advice and Odel’s failure to appear as a witness cannot be the basis for any liability. We affirm. We review the district court’s entry of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989). Our review is governed by the same standard used by the trial court under Federal Rule of Civil Procedure 56(c). Barring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire & Cas. Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). The relevant facts are not in dispute. Tedder mailed a subpoena to Odel and admits that he failed to attach the necessary witness and mileage fees. See Fed.R. Civ.P. 45(c). Defendant McAlister, in his official capacity as counsel for the State of Oregon, advised Odel that service was improper and that Odel was not required to appear. At trial Tedder objected to Odel’s failure to appear and moved for a new trial based on alleged witness tampering by McAlister. See Tedder v. Letney, No. 85-6279-PA (D.Or.). The trial court denied the motion, and Tedder brought this second § 1983 action for damages against McAlister and Odel. Tedder’s claims do not create a dispute of fact. He argues that McAlister and Odel are not entitled to judgment as a matter of law. Tedder first argues that his" }, { "docid": "1584086", "title": "", "text": "the federal court judgment. On November 29, 1994, the bankruptcy court agreed with Smith’s that the doctrine of collateral estoppel applied, and entered a judgment in favor of Smith’s declaring the federal court judgment to be nondisehargeable. Silva timely filed his notice of appeal. II. ISSUE Whether an unopposed motion for summary judgment is “actually litigated” so as to be entitled to collateral estoppel effect in a subsequent action. III. STANDARD OF REVIEW A grant of summary judgment is reviewed de novo. Halverson v. Skagit County, 42 F.3d 1257, 1259 (9th Cir.1994); In re Kelly, 182 B.R. 255, 257 (9th Cir. BAP 1995). An appellate court’s review is governed by the same standard used by the trial courts under Fed.R.Civ.P. 56(c). Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Fed.R.Civ.P. 56 is applicable to bankruptcy proceedings through Fed.R.Bankr.P. 7056. An appellate court 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 trial court correctly applied the relevant substantive law. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). The panel applies a de novo standard for reviewing the question of the availability of collateral estoppel. Kelly, 182 B.R. at 258; In re Berr, 172 B.R. 299, 304 (9th Cir. BAP 1994). IV. DISCUSSION A. Collateral Estoppel In order for a prior judgment to be entitled to collateral estoppel effect, five elements must be met: 1) The issue sought to be precluded from relitigation must be identical to that decided in á former proceeding; 2) The issue must have been actually litigated in the former proceeding; 3) It must have been necessarily decided in the former proceeding; 4) The decision in the former proceeding must be final and on the merits; and 5) The party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. Figueroa v. Campbell Indus., 45 F.3d 311, 315 (9th Cir.1995); Kelly, 182 B.R. at 258; Berr, 172 B.R. at 306. See generally, 1B James W." }, { "docid": "21542990", "title": "", "text": "Kirkland's partnership interest in an apartment complex. The agreement also provides that the September 16, 1980 continuing guaranty “shall remain in full force and effect.” At the end of the moratorium, Cascade again failed to make payment and on May 7, 1982 filed a Chapter 11 bankruptcy petition in Wichita, Kansas. Mr. Kirkland subsequently resigned as president. In August 1983 and September 1983, Cascade’s new president sold a premix mud tank for $4,500 and a drilling rig for $55,-000, respectively, either with the consent or at the direction of Security Pacific. The Kansas bankruptcy court found these sales to be commercially reasonable. The Kirk-lands were not given notice of the sales and learned about them after the sales took place. PROCEDURAL HISTORY In January 1985, the Kirklands filed individual Chapter 11 petitions. On May 15, 1985, Security Pacific filed its proof of claim. The Kirklands objected to this claim on the grounds that Security Pacific did not give the Kirklands notice of the sale of collateral and moved for summary judgment. The bankruptcy court granted the motion holding that guarantors are “debtors” for the purpose of § 9105(l)(d) and therefore entitled to the protections of § 9504(3). As such, the Kirklands, as a matter of law, could not have waived their right to notice prior to default. The court also determined that there was no post-default waiver because the letter agreements subsequent to the initial default constituted a novation of the Kirklands’ original obligation. Because no notice was given subsequent to default, the bankruptcy court disallowed the deficiency claim in the amount of $1,303,882.78 plus interest, cost of collection, and attorneys’ fees. On September 22, 1988, the bankruptcy appellate panel issued an opinion upholding the bankruptcy court’s order and affirming the grant of summary judgment. In re Kirkland, 91 B.R. 551 (Bankr. 9th Cir. 1988). The court held that, even if the letter agreements incorporated the terms of the continuing guaranty by reference, Cascade’s repeated failure to make payments constituted separate defaults, not one continuous default. Therefore, the waivers of notice, if any, occurred prior to, not after, the last" }, { "docid": "21542993", "title": "", "text": "novo. Matter of McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc). When interpreting state law, a federal court is bound by the decision of the highest state court. Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir.1986), reh’g denied, op. modified, 810 F.2d 1517 (9th Cir.1987). In the absence of such a decision, a federal court must predict how the highest state court would decide the issue using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance. Id. at 1482; Molsbergen v. United States, 757 F.2d 1016, 1020 (9th Cir.1985), cert. dismissed, 473 U.S. 934, 106 S.Ct. 30, 87 L.Ed.2d 706 (1985). However, “ ‘in the absence of convincing evidence that the highest court of the state would decide differently,’ ” American Triticale, Inc. v. Nytco Services, Inc., 664 F.2d 1136, 1143 (9th Cir.1981) (quoting Stoner v. New York Life Ins. Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284 (1940)), a federal court is obligated to follow the decisions of the state's intermediate courts. See id. ANALYSIS I. The Definition of Debtors under Commercial Code § 950^(3). At issue is whether a “guarantor” is a “debtor” for the purposes of § 9504(3). California Commercial Code § 9504(3) requires a secured creditor to notify a debtor in default of the manner in which the creditor will dispose of the collateral unless, after default, the debtor waives this right. Commercial Code § 9504(3) provides in relevant part: Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold in a recognized market, the secured party must give to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale, ... a notice in writing of the time and place of any public sale ... any private sale or other intended disposition ... to be made. Under Commercial Code § 9501(3), this post-default notice requirement cannot be waived except as provided in § 9504(3). Article Nine defines a debtor as the person who owes payment or other" }, { "docid": "23208076", "title": "", "text": "the hospital, Barlow acknowledged that he is gay. The police then asked Barlow if he had AIDS. He said no. Police asked again and received the same reply. Finally, after continued questioning, Barlow said, “for the officers’ sake, you better take it that I do [have AIDS].” The officers then asked permission to take Barlow’s blood so they could test it for AIDS. Barlow refused to consent. Police then took Barlow to the San Diego Police Department, where they took a blood sample without consent and without a warrant. After this warrantless seizing of Barlow’s blood, police sought a warrant that would grant them authority to seize a second sample and test it for AIDS. The warrant police obtained authorize a second seizure, but did not authorize testing. Pursuant to the warrant, police then took a second sample of Barlow’s blood. Later, police obtained an order authorizing them to test the second blood sample. The California Court of Appeals held that the warrant authorizing the collection of the second blood sample was invalid for lack of probable cause. The California Supreme Court denied review and ordered the appellate decision depublished. Neither blood sample was ever tested. A jury unanimously acquitted Barlow of the criminal charges. He then filed this suit in state court. The defendants removed the case to the federal district court. The district court granted the defendants’ motion for summary judgment, and Barlow filed this timely appeal. II We review de novo a grant of summary judgment. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Summary judgment is proper where “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 reverse a grant of summary judgment if, viewing the evidence in the light most favorable to the non-moving party, there are genuine issues of material fact or if the district court erroneously applied the relevant law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). III We consider first the issues arising out of" }, { "docid": "1616946", "title": "", "text": "403 (1983). Nonetheless, all of the above evidence merely suggests that Erickson was a Grif-fies supporter who was terminated, not that she was terminated because she was a Griffies supporter. When asked why she believed she was discharged from the prosecutor’s office, Erickson replied as follows: The reason I feel I was discharged because I supported Mr. Griffies is the fact that I was discharged. I was given a list of reasons why I was being discharged. I didn’t have an opportunity to meet and discuss those reasons. I was being discharged. So to me — excuse me, so to my belief I was only being discharged because of politically supporting Mr. Grif-fies. A thorough reading of the trial transcript reveals no additional evidence of Laden-burg’s motives other than that cited by the parties above. The evidence simply does not support Erickson’s claim that her political support for Griffies during the election was a substantial or motivating factor in Ladenburg’s decision to terminate her. We hold that Erickson failed to satisfy the second element of the Mt. Healthy test and that the district court erred by not granting Pierce County’s motion for judgment notwithstanding the verdict. Consequently, we need not consider whether Laden-burg has satisfied the third element of the Mt. Healthy test. III. Erickson claims that the district court erred by dismissing her due process claim prior to trial. A grant of summary judgment is reviewed de novo. T. W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n., 809 F.2d 626, 629 (9th Cir.1987); Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). The appellate court’s review is governed by the same standard used by the trial court under Fed.R.Civ.P. 56(c). Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). The court 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. Tzung v. State Farm Fire and Casualty" }, { "docid": "1616947", "title": "", "text": "the Mt. Healthy test and that the district court erred by not granting Pierce County’s motion for judgment notwithstanding the verdict. Consequently, we need not consider whether Laden-burg has satisfied the third element of the Mt. Healthy test. III. Erickson claims that the district court erred by dismissing her due process claim prior to trial. A grant of summary judgment is reviewed de novo. T. W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n., 809 F.2d 626, 629 (9th Cir.1987); Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). The appellate court’s review is governed by the same standard used by the trial court under Fed.R.Civ.P. 56(c). Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). The court 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. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). Erickson claims that Ladenburg deprived her of a liberty interest without due process. Essentially, Erickson argues that when Ladenburg said it was improper for her to retain a high salary after transferring to the family support department, she suffered injury to her reputation because Ladenburg’s statement implied that she was dishonest. She contends she was prevented from securing other employment with Pierce County. The district court was correct in finding no violation of a liberty interest. The remark concerning being overpaid does not rise to the level of violating a liberty interest. In light of the Ninth Circuit and Supreme Court case law on point, it is clear that the district court did not err in dismissing Erickson’s due process claim. Roth v. Veteran’s Admin., 856 F.2d 1401, 1411 (9th Cir.1988) (employer who implied that employee could not get along well with others and would make a poor manager did not violate employee’s liberty interest because statements did not foreclose employee’s ability to practice his profession); Stretten v." }, { "docid": "19209944", "title": "", "text": "for a specific plan. This argument confuses the ripeness requirement with the doctrine of exhaustion of remedies that was at issue in Sierra Lake. The language quoted by the Kawaokas explains that in contrast to individuals who bring claims for procedural due process violations based on random acts of agency officials, parties who bring substantive due process claims are not required to exhaust all state remedies prior to seeking adjudication in federal court. Id. This doctrine is distinct from the ripeness requirement, which requires that the plaintiff have a final agency decision and therefore a “concrete controversy” before bringing an action in federal court. Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 1398, 1407 (9th Cir.1989), cert. denied, 494 U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990); see also David R. Mandelker et al., Federal Land Use Law § 2.05[4](h), at 2.58 & n. 106. Because the Kawaokas’ “as applied” challenges to the City’s actions are unripe, the district court properly dismissed those claims for lack of subject matter jurisdiction. II. Facial Substantive Due Process Challenge A Standard of Review The district court granted summary judgment for the City with respect to the Kawaokas’ facial challenges. A grant of summary judgment is reviewed de novo. Jones v. Union Pac. R. Co., 968 F.2d 937, 940 (9th Cir.1992); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 629 (9th Cir.1987). Our review is governed by the same standard used by the trial court under Federal Rule of Civil Procedure 56(c). Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). 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. Federal Deposit Ins. Corp. v. O’Melveny & Meyers, 969 F.2d 744, 747 (9th Cir.1992); Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). To establish a violation of substantive due process, the Kawaokas are required to prove that the City’s general plan or temporary water" }, { "docid": "3026283", "title": "", "text": "applicable statutes of limitations. The district court granted the Manufacturers’ motion, concluding that all of Nevada Power’s claims were time-barred, and further that Nevada Power had failed to state a claim for equitable indemnity. Nevada Power timely filed notice of appeal. II This matter was before the district court under its diversity jurisdiction, and hence state substantive law applies. See Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Specifically, federal courts exercising diversity jurisdiction are to use state statutes of limitation. West v. Conrail, 481 U.S. 35, 39 n. 4, 107 S.Ct. 1538, 1541 n. 4, 95 L.Ed.2d 32 (1987). The Nevada Supreme Court is controlling authority on questions of Nevada law. See Commissioner v. Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967). As in questions of federal law, a district court’s interpretation of state law is reviewed de novo. See In re McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc) (abandoning prior rule of “a deferential standard of review to a district judge’s construction of the law of the state in which he or she sits”). A grant of summary judgment presents an issue of law reviewed de novo. Kruso v. International Tel & Tel., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). In determining whether any genuiné issue of material fact exists, this court must view the evidence in the light most favorable to the nonmoving party, here Nevada Power. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). Ill A Nevada Power contends that its fraud and failure to warn claims are not barred by the statute of limitations. There is no disagreement that a three-year statute of limitations applies the fraud claim. See Nev.Rev.Stat. § 11.190, subd. 3(d) (1989) (actions for “fraud or mistake” must commence within 3 years). Such actions are “deemed to accrue upon the discovery by the aggrieved party of the facts constituting the fraud or mistake.” Id. The Nevada Supreme Court, however, has interpreted this" }, { "docid": "22462068", "title": "", "text": "and capricious, was supported by substantial evidence, was not made in bad faith, and was not erroneous as a matter of law, and that even if the decision were subject to de novo review, Metropolitan did not violate its fiduciary duty. The court also ruled that the Plan was entitled to the retroactive social security benefits Madden received for the period he also received Plan benefits. Lastly, the court ruled that Federal was not a proper party, because ERISA only permits suits for recovery of benefits against the employee benefit plan itself, not the employer. The court denied Madden’s cross-motion for summary judgment, which sought ERISA disability benefits on the theory that he was eligible because he received a social security award. Madden appeals, contending that (1) Metropolitan’s decision to terminate his Plan benefits should be reviewed under the de novo standard of review; (2) Metropolitan acted improperly in terminating his Plan benefits; (3) there are disputed issues of material facts; (4) he is entitled to summary judgment because he succeeded in his social security disability claim; (5) the Plan is not entitled to any of his retroactive social security benefits award; and (6) Federal is a proper party. Madden also requests attorney’s fees on the appeal. We affirm. B. Standard of Review We review a grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). 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. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). Madden contends that Metropolitan’s decision to terminate his Plan benefits should be reviewed under the de novo standard of review. Madden contends that even though ITT’s decisions under the Plan are entitled to the “arbitrary and capricious” standard of review because ITT is the Plan’s named fiduciary, Metropolitan’s decision to terminate his Plan benefits" }, { "docid": "21542991", "title": "", "text": "the motion holding that guarantors are “debtors” for the purpose of § 9105(l)(d) and therefore entitled to the protections of § 9504(3). As such, the Kirklands, as a matter of law, could not have waived their right to notice prior to default. The court also determined that there was no post-default waiver because the letter agreements subsequent to the initial default constituted a novation of the Kirklands’ original obligation. Because no notice was given subsequent to default, the bankruptcy court disallowed the deficiency claim in the amount of $1,303,882.78 plus interest, cost of collection, and attorneys’ fees. On September 22, 1988, the bankruptcy appellate panel issued an opinion upholding the bankruptcy court’s order and affirming the grant of summary judgment. In re Kirkland, 91 B.R. 551 (Bankr. 9th Cir. 1988). The court held that, even if the letter agreements incorporated the terms of the continuing guaranty by reference, Cascade’s repeated failure to make payments constituted separate defaults, not one continuous default. Therefore, the waivers of notice, if any, occurred prior to, not after, the last default. The panel also affirmed the bankruptcy court’s decision to disallow Security Pacific’s deficiency claim in its entirety. Security Pacific appeals and requests summary judgment on the grounds that guarantors are not entitled to notice, that a guarantor can waive the right to notice prior to default, and that no novation of contract took place. We affirm and deny Security Pacific’s request for summary judgment. STANDARD OF REVIEW A bankruptcy court’s decision to grant summary judgment is reviewed de novo. In re Two S Corp., 875 F.2d 240, 242 (9th Cir.1989). This court must employ the same standard used by the bankruptcy court under Fed.R.Civ.P. 56(c), Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986), and must determine whether there are any genuine issues of material fact and whether the bankruptcy court correctly applied the relevant substantive law when the evidence is viewed in a light most favorable to the nonmoving party. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). An interpretation of state law is likewise reviewed de" }, { "docid": "21542992", "title": "", "text": "default. The panel also affirmed the bankruptcy court’s decision to disallow Security Pacific’s deficiency claim in its entirety. Security Pacific appeals and requests summary judgment on the grounds that guarantors are not entitled to notice, that a guarantor can waive the right to notice prior to default, and that no novation of contract took place. We affirm and deny Security Pacific’s request for summary judgment. STANDARD OF REVIEW A bankruptcy court’s decision to grant summary judgment is reviewed de novo. In re Two S Corp., 875 F.2d 240, 242 (9th Cir.1989). This court must employ the same standard used by the bankruptcy court under Fed.R.Civ.P. 56(c), Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986), and must determine whether there are any genuine issues of material fact and whether the bankruptcy court correctly applied the relevant substantive law when the evidence is viewed in a light most favorable to the nonmoving party. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). An interpretation of state law is likewise reviewed de novo. Matter of McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc). When interpreting state law, a federal court is bound by the decision of the highest state court. Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir.1986), reh’g denied, op. modified, 810 F.2d 1517 (9th Cir.1987). In the absence of such a decision, a federal court must predict how the highest state court would decide the issue using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance. Id. at 1482; Molsbergen v. United States, 757 F.2d 1016, 1020 (9th Cir.1985), cert. dismissed, 473 U.S. 934, 106 S.Ct. 30, 87 L.Ed.2d 706 (1985). However, “ ‘in the absence of convincing evidence that the highest court of the state would decide differently,’ ” American Triticale, Inc. v. Nytco Services, Inc., 664 F.2d 1136, 1143 (9th Cir.1981) (quoting Stoner v. New York Life Ins. Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284 (1940)), a federal court is obligated to follow the decisions of the state's intermediate courts. See" }, { "docid": "17322761", "title": "", "text": "as a class action. On November 15, 1991 defendants moved to dismiss. They later made a motion for summary judgment. Following a hearing on January 17, 1992, Judge Walker ordered further briefing on the forced sale issue. On August 12, 1992, Judge Walker granted defendant’s motion to dismiss for failure to state a claim. Jacobson and Fury made a timely appeal. II. DISCUSSION A. Standard of Review We review a motion for dismissal for failure to state a claim de novo. Oscar v. University Students Coop. Ass’n, 965 F.2d 783, 785 (9th Cir.) (en banc), cert. denied, — U.S. —, 113 S.Ct. 655, 121 L.Ed.2d 581 (1992). If matters outside the pleadings are submitted, the motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is treated as one for summary judgment under Federal Rule of Civil Procedure 56. See Fed.R.Civ.P. 12(b); Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1507-08 (9th Cir.1990). In considering AEG’s motion to dismiss, the district court took judicial notice of the extensive records and transcripts from the prior bankruptcy proceedings (In re: Siliconix Inc., No. 3-90-01275-LK (Bankr.N.D.Cal.)). We therefore review the district court’s dismissal as an order granting summary judgment. This court reviews orders granting summary judgment de novo and applies the same standard that guides the district court. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Accordingly, we must determine, viewing the evidence most favorably to the appellants, whether there are any genuine issues of material fact which should have gone to a trier of fact and whether the district court correctly applied the relevant substantive law. Id. Although the district court treated the dismissal as a Rule 12(b)(6) dismissal, the plaintiffs were given ample opportunity to brief the issues involved and submit affidavits and declarations in support of their position. Neither party claims that there is a dispute of material fact with regard to the dispositive issues in this case. B. Statutory Immunity Under Section 1125(e) Section 1125(e) of the Bankruptcy Code provides: A person that solicits acceptance or rejection of a plan, in good faith" }, { "docid": "23309446", "title": "", "text": "PER CURIAM: Steven and Peggy Martin (the Martins) appeal the entry of summary judgment in favor of State Farm Fire & Casualty Co. (State Farm) in its action for declaratory relief. State Farm sought and obtained a declaration that certain damage to the Martins’ home was excluded from coverage under a State Farm homeowner’s insurance policy issued to the Martins. On appeal, the Martins argue that (1) the exclusions in their policy are ambiguous and a genuine issue of material fact existed over whether the damage to their home was covered; (2) the district court erred in crediting a concurrent causation provision in the policy since that provision was contrary to California law; and (3) the district court improperly granted summary judgment to State Farm on various counterclaims of the Martins. The district court had jurisdiction of this diversity action under 28 U.S.C. § 1332. We have jurisdiction of this timely appeal pursuant to 28 U.S.C. § 1291. The district court set forth the undisputed facts. State Farm Fire & Casualty Co. v. Martin, 668 F.Supp. 1379, 1380-81 (C.D.Cal.1987). We review a summary judgment independently. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986). The district court’s interpretation and application of state law is entitled to no special deference but is reviewed independently. Matter of McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc). The Martins first argue that the district court erred in granting summary judgment because the policy’s exclusions are ambiguous and there existed a genuine issue of fact whether the policy covered the damage to their home. We agree with the district court that the policy exclusions are unambiguous and the Martins failed to raise a genuine issue of material fact regarding coverage. 668 F.Supp. at 1381-83. However, one part of the district court opinion requires clarification. Because the insurer bears the burden" }, { "docid": "3967732", "title": "", "text": "law. Accordingly, police arrested the plaintiffs for violating section 33.3317 and escorted them to jail where they underwent the usual administrative procedures that follow an arrest. Plaintiffs Higbee, Crenshaw, and Smogyi were in custody approximately three hours. Plaintiff Dennehy was in custody a little over eight hours. The police based the decision to forego field release upon their belief that plaintiffs would continue their offense if not taken to jail, not upon the failure of plaintiffs to provide proper identification or concern that plaintiffs would fail to appear in court. The district court granted partial summary judgment in favor of defendants on plaintiffs’ claim that the police officers’ decision to take plaintiffs to jail instead of releasing them in the field violated the Fourth and Fourteenth Amendments. II STANDARD OF REVIEW A grant of summary judgment is reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). Appellate court review is governed by the same standard used by trial courts under Fed.R. Civ.P. 56(c). Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). An appellate court must determine, viewing the evidence in a 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. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). III ANALYSIS Plaintiffs seek damages pursuant to 42 U.S.C. section 1983. They allege their treatment by the police was unreasonable and therefore a violation of their constitutional rights guaranteed by the Fourth and Fourteenth Amendments. The gist of plaintiffs’ argument is that the police es corted them to jail upon the occasion of their second arrest as punishment for the possible future commission of a misdemeanor. The City, on the other hand, contends the police appropriately exercised discretion given to them by law, opting not to use field release citations because they confronted an offense they could reasonably expect to continue. The City denies this was done as" } ]

[ { "docid": "12271491", "title": "", "text": "the Standing Committee on Faculty Rights did meet these requirements. See Agarwal v. Regents of the University of Minnesota, 788 F.2d 504, 508 (8th Cir.1986). The district court agreed with the magistrate that summary judgment should be denied on Morris’ substantive due process claim, holding the record reflected a genuine issue of material fact regarding whether Morris’ discharge was the result of “arbitrary and capricious treatment at the hands of defendants who acted in concert to ratify and substantiate after the fact a pretextual and vindictive decision” made by Perrone in July, 1980, to terminate Morris. II. Defendants have appealed. The sole issue before us is whether defendants are entitled to qualified immunity from individual liability as a matter of law. Defendants may not invoke the defense if their conduct violates “clearly established constitutional or statutory rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A right is “clearly established” if the contours of the right are such that a reasonable official would understand that what he or she is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). See Holloway v. Conger, 896 F.2d 1131, 1136-37 (8th Cir.1990). Plaintiff contends that defendants’ actions amounted to a violation of his clearly established right to be free from vindictive, arbitrary, and capricious discharge. Plaintiff cites as a basis for this right the regulations on Academic Freedom, Tenure, and Due Process contained in the Faculty Handbook and referenced by the President in informing plaintiff of his termination. These regulations provide that a tenured faculty member can be dismissed only for “adequate cause.” Defendants agree these provisions give plaintiff, as a tenured faculty member, a constitutionally protected property interest in continued employment. See Moore v. Warwick Public School District, 794 F.2d 322, 328-30 (8th Cir.1986); Agarwal v. Regents of the University of Minnesota, 788 F.2d 504, 507-08 & n. 2 (8th Cir.1986); Stermetz v. Harper, 763 F.2d 366, 367 (8th Cir.1985); O’Neal v. City of Hot Springs Nat’l" } ]

[ { "docid": "6243147", "title": "", "text": "allege that the decision not to rehire Mrs. Hayes was motivated by the Board’s desire to retaliate against them for Mr. Hayes’ activities as a negotiator on behalf of the teachers in the District. This, they argue, was so arbitrary and capricious as to be violative of substantive due process. The defendants contend that: (a) Mrs. Hayes has failed to state a claim even if their decision was so motivated, and (b), the facts elicited have demonstrated that their decision was, in fact, based on Mrs. Hayes’ inability to satisfactorily perform her responsibilities. The threshold inquiry is whether the plaintiffs have alleged the infringement of a constitutional right, therefore, whether the requirements of substantive due process preclude the dismissal of a public employee for the reasons cited by the plaintiffs. Mrs. Hayes was not tenured and her contractual relationship does not appear to restrict the defendants’ discretion in re-employment decisions. The defendants contend that even assuming that the decision not to rehire Mrs. Hayes was actuated in an effort to retaliate against Mr. Hayes, Mrs. Hayes would not have a constitutional claim under Section 1983. The Court cannot accept this conclusion that the Board’s discretion is sufficiently broad to tolerate a dismissal under those circumstances. As in the question of procedural due process, the extent to which substantive due process applies to governmental employment decisions is unsettled. However, conditioning public employment on the unreasonable relin■quishment of rights explicitly embodied in the Constitution is precluded. Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) and Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952). In addition, an individual may not be dismissed for the reasonable exercise of a constitutional right. Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Sindermann v. Perry, supra; Pred v. Bd. of Public Instruction, supra; and Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966); Drown v. Portsmouth School District, supra; and Boyce v. Alexis I. Dupont School Dist., 341 F.Supp. 672 (D.Del. March 23, 1972). Such a dismissal places" }, { "docid": "1530608", "title": "", "text": "action taken against appellants did not deprive them of the pursuit of a profession, and they do not wear a “badge of infamy” because of their removal. Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Norton v. Macy, 135 U.S.App.D.C. 214, 417 F.2d 1161, 1164 (1969). They are unlike the plaintiff in Lucas v. Chapman, 430 F.2d 945 at 947 (5th Cir., 1970), whose “long employment in a continuing relationship through the use of renewals of short-term contracts was sufficient to give him the necessary expectancy of reemployment that constituted a protectable interest.” In the case at bar, appellants were not protected by Civil Service laws. In 42 U.S.C. § 2994b, it is specifically provided that VISTAs are not subject to laws relating to federal employment, and are not federal employees, except for tax and social security purposes. They are also subject to Hatch Act restrictions on political activities. Thus, they are similar to temporary or probationary workers. In Jaeger v. Freeman, 410 F.2d 528 (5th Cir. 1969), plaintiff was under a one-year probationary employment as a government poultry inspector and was dismissed. In denying him reinstatement and back pay, this court held that due process does not in every instance require the government to grant a trial-type hearing to a discharged employee, and found no compelling reasons to impose such a requirement prior to dismissal of probationary employees. See Medoff v. Freeman, 362 F.2d 472 (1st Cir. 1966). We should thus have rejected appellants’ claim that they were deprived of a constitutional hearing. The Eighth Circuit, in Freeman v. Gould Special Seh. Dist. of Lincoln County, Ark., 405 F.2d 1153 (1969), stated: “IT] here are many public employees who are separated from their employment by a purely arbitrary decision, upon a change of administration or even a change of factual control where the appointments are not protected by civil service or some type of tenure, statutory or contractual. •X- * * “Absent statutory or contractual requirements, persons discharged for inefficiency, incompetency, or insubordination have no constitutional right to a hearing with rights of" }, { "docid": "6755737", "title": "", "text": "University, and concludes that the termination therefore represents impermissible retribution for his exercise of rights protected by the First and Fourteenth Amendments. Alternatively, the plaintiff suggests that he was entitled to an administrative hearing before his employment was terminated and that the failure of the Slippery Rock officials to afford him a hearing was transgressive of the Fifth and Fourteenth Amendments. In sum, by this action the plaintiff seeks to have himself either reinstated or afforded an administrative hearing. Preliminarily, the defendants have moved to dismiss the action for failure to state a cause of action upon which relief may be granted. I think, however, that it is well settled that the employment of a public school professor, instructor, or teacher may not be terminated for his exercise of constitutionally protected rights. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Roth v. Board of Regents, 446 F.2d 806 (7th Cir. 1971); Lucas v. Chapman, 430 F.2d 945 (5th Cir. 1970); Pred v. Board of Public Instruction, 415 F.2d 851 (5th Cir. 1969); Greene v. Howard University, 134 U.S.App.D.C. 81, 412 F.2d 1128 (1969). Further, as stated in Roth v. Board of Regents, 310 F.Supp. 972 (D.C.W.D.Wis.1970), aff’d. 446 F.2d 806 (7th Cir. 1971). “[T]his substantive constitutional protection is unaffected by the presence or absence of tenure * * *. Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966), cert. den. 385 U.S. 1003 [787 S.Ct. 706, 17 L.Ed.2d 542] * * *. Nor is it material whether employment is terminated during a given contract period, or not renewed for a subsequent period. McLaughlin v. Tilendis [398 F.2d 287 (7th Cir. 1968)].” Too, it is clear that the termination of the plaintiff’s employment was “state action”. If he proves, then, that his employment was terminated because he exercised rights protected" }, { "docid": "4193533", "title": "", "text": "7 L.Ed.2d 193 (1961); and Kelly v. Wyman, 294 F.Supp. 893 (S.D.N.Y.1968) (three-judge court); W. W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L.Rev. 1439 (1968). “The focus of inquiry has shifted from identification of individual rights to an examination of the reasonableness of governmental action.” Note, Dismissal of Federal Employees— The Emerging Judicial Role, 66 Colum.L. Rev. 719, 734 (1966). Thus in Wieman v. Updegraff, supra 344 at 192, 73 S.Ct. at 219 the Supreme Court stated: “We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.” In the court’s view, the issue of substantive due process is not before the court in this case. Though the University in its brief attempts to place itself in the position of a private industrial employer who can hire or discharge an employee at will and with or without cause or for any reason, such an argument cannot seriously be brooked here in view of the University’s own Civil Service Rule 16.41, quoted above, which permits the dismissal of an employee (when beyond his probationary period) “for just cause”. This as a negative pregnant clearly prohibits dismissal without just cause. The University has thus on its own initiative and effectively, as least for purposes of this lawsuit, recognized by its Rules 16 and 17 that an employee in plaintiff’s position does have a substantive due process right to continue his employment without termination unless and until just cause has been shown at a hearing to exist. The University relies on Kierk v. City of Thief River Falls, 255 Minn. 141, 96 N.W.2d 28 (1959); Oikari v. Independent School District #40, 170 Minn. 301, 212 N.W. 598 (1927) and State ex rel. Early v. Wunderlich, 144 Minn. 368, 175 N.W. 677 (1920). These cases stand for the proposition: “ ‘ * * * The authorities all agree that the power to appoint officers or employes [sic] of a" }, { "docid": "20632366", "title": "", "text": "other property interest in a benefit afforded by her current contract with the state university. A mere breach of contract will not suffice for an action under § 1983 without a violation of due process rights. Bishop, 426 U.S. at 349-50, 96 S.Ct. 2074. While a plaintiff may have an action in state court for damages for breach of contract, he may not sue under § 1983 unless his constitutional rights have in some way been denied or his exercise of those rights penalized in some way. Id. Dr. Whiting argues that she has been deprived of the property interest arising from her contractual right to the promotion and tenure procedures laid out in the handbook. Again, to determine if property rights exist, the court must look to state law. Mississippi courts have held that contract rights constitute enforceable property rights. Univ. of Miss. Med. Ctr. v. Hughes, 765 So.2d 528, 536 (Miss.2000) (citing Wicks, 536 So.2d at 23 (Miss.1988)). “[I]t is federal constitutional law[, however,] which determines whether that property interest rises to the level of a constitutionally protected interest.” Hughes, 765 So.2d at 536. Certain contract situations, however, such as a “public college professor dismissed from an office held under tenure provisions,” or “staff members dismissed during the terms of their contracts,” have contractual rights creating “an interest in continued employment that [is] safeguarded by due process.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 566-67, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (citing respectively, Slochower v. Bd. of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956), and Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952)). Mississippi courts have held that employee manuals become part of the employment contract, creating contract rights to which employers may be held, such as Dr. Whiting’s right to the procedures outlined in the handbooks. Robinson v. Bd. of Trustees of E. Cent. Junior Coll., 477 So.2d 1352, 1353 (Miss.1985); see also, Bobbitt v. The Orchard Dev. Co., 603 So.2d 356, 361 (Miss.1992). The 5th Circuit has held that where a property" }, { "docid": "974228", "title": "", "text": "the home of a black police officer with his family. It is now settled law that if the state, either by statute, regulation or procedure, creates in its employees the expectation of re-employment or retention, then their employment can only be terminated under procedures which accord them the fundamentals of due process. Ferguson v. Thomas, 5 Cir. 1970, 430 F.2d 852; Pred v. Board of Public Instruction, 5 Cir. 1969, 415 F.2d 851 (Pred I); Freeman v. Gould Special School District, 8 Cir. 1969, 405 F.2d 1153. According to the laws of Mississippi, Battle had no right to expect continued employment because he could be dismissed without cause. Other employees in Mississippi, those who come under the civil service laws, can be removed only for cause and are entitled by state law to notice and the opportunity to challenge their removal. There were no state administrative or judicial procedures established through which Battle could vindicate his rights. We are not presented with the broad issue of whether a state has a legitimate interest in having certain employees to serve at the pleasure of the appointing body. We are presented with the claim of an individual who was so employed and who alleges that he was dismissed for reasons which violate his constitutional rights. It is true that states have broad leeway in establishing the terms of public employment. But that leeway is not without limitation. It is no answer to the issue here to say that there is no federal right to public employment. “To state that a person does not have a constitutional right to government employment is only to say that he must comply with reasonable, lawful, and nondiscriminatory terms laid down by the proper authorities.” Slochower v. Board of Higher Education, 350 U.S. 551, 555, 76 S.Ct. 637, 639, 100 L.Ed. 692 (1956). And, as the Supreme Court said in Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 219, 97 L.Ed. 216 (1952), “We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection" }, { "docid": "4193532", "title": "", "text": "and “reasonable action\" in the premises. It was once held that a citizen has no “constitutional right to be a policeman” and that governmental employment was an unprotected privilege and not a right. See the opinion by Mr. Justice Holmes, as a member of the Massachusetts Supreme Judicial Court, in McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892). More recently, however, this right-privilege distinction as a limitation on substantive or procedural due process affecting employment in the public sector has been seriously eroded if not virtually rejected. See e. g., Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L. Ed.2d 811 (1968); Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1958); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961); and Kelly v. Wyman, 294 F.Supp. 893 (S.D.N.Y.1968) (three-judge court); W. W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L.Rev. 1439 (1968). “The focus of inquiry has shifted from identification of individual rights to an examination of the reasonableness of governmental action.” Note, Dismissal of Federal Employees— The Emerging Judicial Role, 66 Colum.L. Rev. 719, 734 (1966). Thus in Wieman v. Updegraff, supra 344 at 192, 73 S.Ct. at 219 the Supreme Court stated: “We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.” In the court’s view, the issue of substantive due process is not before the court in this case. Though the University in its brief attempts to place itself in the position of a private industrial employer who can hire or discharge an employee at will and with or without cause or for" }, { "docid": "9925290", "title": "", "text": "247, 5 L.Ed.2d 231 (1960) (affidavit listing organizational membership required of teachers at state-funded educational institutions); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952) (loyalty oath required of state employees). Although the Court discussed the infringement of the state act on academic freedom in two of the cases, see Whitehill, 389 U.S. at 59-60, 88 S.Ct. 184; Shelton, 364 U.S. at 487, 81 S.Ct. 247, and all of the actions were brought by teachers, in none of them did the Court base its holding-on academic freedom, see Whitehill, 389 U.S. at 59-62, 88 S.Ct. 184 (striking down provision on basis of overbreadth); Shelton, 364 U.S. at 490, 81 S.Ct. 247 (same); Wieman, 344 U.S. at 190-92, 73 S.Ct. 215 (declaring statute unconstitutional as violative of due process).' Even if Whitehill, Shelton, and Wieman could be said to have established a constitutional right of academic freedom enjoyed by publicly employed teachers, such a holding would be of little significance in light of the historical context. As late as March 1952, mere months before Wieman was decided, the Supreme Court had adhered to the principle that public employment was a privilege, not a right, and thus could be conditioned on restrictions on the exercise of constitutional rights by individuals in their capacities as private citizens. See Adler v. Board of Educ., 342 U.S. 485, 492, 72 S.Ct. 380, 96 L.Ed. 517 (1952) (rejecting argument by public school teacher that statute and regulations disqualifying from employment individuals who belonged to certain organizations violated First Amendment rights). By 1956, however, the Court had begun to back away from this position. See Slochower v. Board of Higher Educ., 350 U.S. 551, 555, 558-59, 76 S.Ct. 637, 100 L.Ed. 692 (1956) (holding that dismissal of professor, pursuant to statute that required termination of any public employee who invoked Fifth Amendment right against self-incrimination to avoid a question related to official conduct, violated due process; observing that “[t]o state that a person does not have a constitutional right to government employment is only to say that he must comply with reasonable, lawful," }, { "docid": "6977250", "title": "", "text": "a tenured professor at a state institution not only has a constitutional right to procedural due process, but also has “a substantive due process right to be free from discharge for reasons that are ‘arbitrary and capricious,’ or in other words, for reasons that are trivial, unrelated to the education process, or wholly unsupported by a basis in fact.” Morris v. Clifford, 903 F.2d 574, 577 (8th Cir.1990) (refusing to grant qualified immunity to university personnel for discharging a tenured professor at the University of North Dakota because a tenured professor’s right to substantive due process was clearly established); see also Mueller v. Regents of the Univ. of Minn., 855 F.2d 555, 559-60 (8th Cir.1988) (requiring substantial evidence to support the university’s decision to terminate a tenured professor protected by substantive due process). NDSU policy also provided that tenured faculty could not be terminated absent fiscal restraints or adequate cause. Thus, the faculty who gave up their tenure rights at NDSU in exchange for early retirement gave up the right not only to invoke proper procedure before tenure was lost, but a right not to lose tenure at all without justification. Despite the fact that tenure at a state institution is a constitutionally protected property interest and that the tenured faculty had clear contractual rights not to be terminated absent specific circumstances, the government argues that tenure rights are not contract rights that can be relinquished because the tenure rights have no economic value that can be bought and sold. We are unpersuaded by this argument. Rarely would we expect to find an employment contract that would have recognizable economic value to anyone other than the employee. Lack of a market in which to sell tenure rights does not prevent those rights from having value to the faculty member to whom tenure has been granted. Cf Vail v. Bd. of Educ. of Paris Union Sch. Dist. No. 95, 706 F.2d 1435, 1451 (7th Cir.1983) (Posner, J., dissenting) (“A contract that gives a teacher the right to be employed till he retires is special, for unless he is old or rich" }, { "docid": "8673111", "title": "", "text": "action against them under § 1985(3) because his complaint charges that they conspired with state officials to deprive him of equal protection of the laws by applying standards to him different from those applied to other physicians. Accord, Birnbaum v. Trussel, 347 F.2d 86, 89 (2nd Cir. 1965). Defendants are correct in asserting that plaintiff has no constitutional right to practice his profession at a public facility. Hayman v. City of Galveston, 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714 (1927); accord, Adler v. Board of Educ., 342 U.S. 485, 72 S.Ct. 3.80, 96 L. Ed. 517 (1952). The constitutional requirements of due process and equal protection, however, place limitations on the manner in which one can be excluded from such practice. See Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Slochower v. Bd. of Higher Educ., 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956). In holding a loy alty oath invalid in Wieman, supra, the Court said: We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public- servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory. 344 U.8. at 192, 73 S. Ct. at 219. The fact that plaintiff has alleged a denial of the opportunity to practice his profession without due process and a denial of equal protection of the laws distinguishes this case from Hopkins v. Wasson, 329 F.2d 67 (6th Cir. 1964), upon which defendants rely. In Hopkins, a teacher complained of the failure of a school board to renew her contract, but did not allege any procedural irregularities or discrimination in her dismissal. Whether or not due process requires a hearing in a case of dismissal from public employment depends upon the balance of factors such as the need for the government to act summarily and the extent to which the employee will be harmed by the dismissal. See Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 894-899, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961);" }, { "docid": "22819833", "title": "", "text": "position are concerned with either racial discrimination or an invasion of a constitutionally protected right or privilege by way of a statute or regulation. We agree that the teachers are protected under the Equal Protection Clause from discrimination on account of race or religion or in their assertion of constitutionally protected rights, but no case cited by plaintiffs has gone so far as to say that all actions of any governmental board or agency in employment cases must accord the individual due process under the Fourteenth Amendment so as to provide tenure and a right to retain the position, except for cause. And “for cause” presupposes a right to hearing, notice, and appeal. Many government employees are under civil service and some under tenure. Absent these security provisions a public employee has no right to continued public employment, except insofar as he may not be dismissed or failed to be rehired for impermissible constitutional reasons, such as race, religion, or the assertion of rights guaranteed by law or the Constitution. Without detailing all of the cases cited, a review of the principal cases relied on is illuminating. In Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 219, 97 L.Ed. 216 (1952), the Court struck down a so-called loyalty oath holding the “* * * constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.” (Emphasis supplied). Greene v. McElroy, 360 U.S. 474, 79 S.Cf. 1400, 3 L.Ed.2d 1377 (1959) dealt with security clearance procedures not authorized by the President or by the Congress; Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943), a denaturalization proceeding; Spriggs v. Altheimer, Arkansas School District No. 22, 385 F.2d 254 (8 Cir. 1967), civil rights case concerned with a discriminatory practice in charging tuition; Cramp v. Board of Public Instruction of Orange County, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961), Florida statutory loyalty oath; Franklin v. County School Board of Giles County, 360 F.2d 325 (4 Cir. 1966), discriminatory racial discharge; Torcaso v. Watkins, Clerk," }, { "docid": "6243148", "title": "", "text": "Hayes would not have a constitutional claim under Section 1983. The Court cannot accept this conclusion that the Board’s discretion is sufficiently broad to tolerate a dismissal under those circumstances. As in the question of procedural due process, the extent to which substantive due process applies to governmental employment decisions is unsettled. However, conditioning public employment on the unreasonable relin■quishment of rights explicitly embodied in the Constitution is precluded. Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) and Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952). In addition, an individual may not be dismissed for the reasonable exercise of a constitutional right. Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Sindermann v. Perry, supra; Pred v. Bd. of Public Instruction, supra; and Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966); Drown v. Portsmouth School District, supra; and Boyce v. Alexis I. Dupont School Dist., 341 F.Supp. 672 (D.Del. March 23, 1972). Such a dismissal places an impermissible burden on the exercise of a constitutional right. It is clear, therefore, that the employment decisions of public employers are not immune from judicial scrutiny nor permitted to be motivated by any reason whatsoever. Had the defendants terminated Mr. Hayes for his negotiating activities or Mrs. Hayes for the exercise of her freedom of speech, their decision would have violated the plaintiffs’ constitutional rights and would be prohibited. This Court is unable to conceive how the Constitution could countenance a different result when the punitive measures are directed not at the individual exercising the right but at his wife. Such a procedure is, if anything, considerably more invidious and difficult to counteract then direct reprisal. The Court is of the opinion that the theory underlying the holdings in the Keyishian, Pickering, etc., cases cited above, mandates that the decision not to rehire Mrs. Hayes could not permissibly be motivated by the Board’s desire to retaliate against her husband. Whatever the protections applicable to public employees under the substantive due process provision, the Supreme" }, { "docid": "47047", "title": "", "text": "833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Harrah Independent School District v. Martin, 440 U.S. 194, 198, 99 S.Ct. 1062, 59 L.Ed.2d 248 (1979) (per curiam). The constitutional right to substantive due process includes a right to be “free from discharge for reasons that are ‘arbitrary and capricious,’ or in other words, for reasons that are trivial, unrelated to the education process, or wholly unsupported by a basis in fact.” North Dakota State University v. United States, 255 F.3d 599, 605 (8th Cir.2001). As this Court has most recently stated, “an official’s conduct must generally be intended to inflict harm to be conscience shocking in the constitutional sense.” Hawkins v. Holloway, 316 F.3d 777, 788 (8th Cir.2003) (finding a substantive due process violation where a sheriff threatened to shoot employees with a loaded handgun). Although the non-renewal of Dr. Herts’s contract may be constitutionally suspect for other reasons, it cannot be said to rise to the level of conscience-shocking. The reasons given for the non-renewal of Dr. Herts’s contract were not trivial, nor were they wholly unsupported. Nor can the non-renewal be described as arbitrary or capricious action. Defendants were entitled to summary judgment on the ground of an affirmative defense of qualified immunity for the claims of procedural and substantive due process violations. We reverse the denial of summary judgment on qualified immunity grounds for the due process violations. C. Equal Protection and Title VII Claims The trial court held that there were material factual disputes pertaining to Dr. Herts’s job performance that had to be resolved in order to determine whether deficient job performance was a pretext for the non-renewal of her employment contract based on race. Because of these disputes a grant of qualified immunity for the appellants was denied. To make out a prima facie case of discrimination under the Equal Protection Clause of the Fourteenth Amendment, or under Title VII, a plaintiff need show only that she is a member of a protected class, was qualified for her position, and suffered an adverse employment action. Under McDonnell Douglas Corp. v. Green, 411 U.S." }, { "docid": "22475055", "title": "", "text": "indication of his recommendation and then transmitted to the District School Committee, whose business it is either to approve or disapprove in their discretion. (N.C.G.S. § 115-72). There is no vested right to public employment. No one questions the fact that the plaintiff had neither a contract nor a constitutional right to have her contract renewed, but these questions are not involved in this case. It is the plaintiff’s contention that her contract was not renewed for reasons which were either capricious and arbitrary or in order to retaliate against her for exercising her constitutional right to protest racial discrimination. The Supreme Court has recently had occasion to consider the law in this and analogous areas. It has pointed out on numerous occasions the importance of the teaching profession in our democratic society and the necessity of protecting its personal, associational and academic liberty. “Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always be free to inquire, to study and to evaluate * * Sweezy v. State of New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311 (1957); Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952). In Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960), the Court struck down an Arkansas statute which required teachers to list every organization to which they belonged or contributed as violative of the due process clause of the Fourteenth Amendment. In that case, as here, the School Board had refused to renew a teacher’s contract at the end of the school year. The Court said: “Such interference with personal freedom is conspicuously accented when the teacher serves at the absolute will of those to whom disclosure must be made — those who any year can terminate the teacher’s employment without bringing charges, without notice, without a hearing, without affording an opportunity to explain. * *" }, { "docid": "19707150", "title": "", "text": "364 F.2d 177; cf. Arnett v. Kennedy, 1974, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15; see generally Van Alstyne, The Constitutional Rights of Teachers and Professors, 1970 Duke Law Journal 841; Developments In The Law-Academic Freedom, 81 Harvard Law Review 1045 (1968). PROCEDURAL DUE PROCESS Plaintiff contends that his denial of tenure and his discharge without a pretermination hearing is violative of due process. A pretermination hearing is not a hearing held prior to any decision to terminate, but rather a hearing held prior to the termination of benefits — in this case prior to the actual termination of employment at the end of the final academic year. Chung v. Park, 3 Cir. 1975, 514 F.2d 382, 386 & n. 7. The function of the hearing procedure is to inform the professor of the grounds for his non-retention and to allow him to challenge their sufficiency. A post-decision hearing in which the professor has the burden of proof is adequate to satisfy due process. Perry v. Sindermann, 1972, 408 U.S. 593, 603, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570, 580; Chung v. Park, 3 Cir. 1975, 514 F.2d 382, 387. Whether plaintiff was entitled to a pretermination hearing is dependent upon whether he had the requisite property interest in continued employment. A professor claiming a constitutionally protectable property interest in continued employment must be able to point to some objective criteria by which the university administration has indicated a willingness to limit its discretion with respect to an otherwise at-will employment relationship. The Supreme Court has held that in the case of government employment a public college professor dismissed from a tenured position, Slochower v. Board of Education, 1956, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, discharged during the term of his contract, Wieman v. Updegraff, 1952, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, or terminated after receiving a clearly implied promise of continued employment, even though nontenured and without a formal contract, Connell v. Higginbotham, 1971, 403 U.S. 207, 208, 91 S.Ct. 1772, 1773, 29 L.Ed.2d 418, 420, has an interest that is" }, { "docid": "22465567", "title": "", "text": "dismissed from office held under tenure provisions had a property interest in continued employment); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952) (public college professors and staff members dismissed during terms of their contracts had property interests in continued employment); see also Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (public professor would have protectable interest if college had a de facto tenure program and professor had tenure under this program). On the other hand, if the public employee is hired for a limited appointment or is at will, then the employee does not have a property interest in continued employment. See Roth, 408 U.S. at 578, 92 S.Ct. 2701 (where public employee was explicitly appointed for only one year, employee had no property interest in continued employment; employee was not entitled to contract renewal and no statute or policy secured an interest in re-employment); Bishop v. Wood, 426 U.S. 341, 346-47, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (statute created at will employment relationship, as interpreted by relevant state courts, and therefore public employee did not have property interest in continued employment). In this case, the federal statutory employment scheme plainly creates a property interest in continued employment. Mr. Stone was a civil service employee who could not be dismissed except for cause or unacceptable performance. See 5 U.S.C. § 7513(a) (1994) (agency may take an action against an employee only for such cause as will promote efficiency of the service); 5 U.S.C. § 4303 (1994) (agency may reduce in grade or remove an employee for unacceptable performance). The statute therefore entitled Mr. Stone to continue in his position unless the agency could show he needed to be removed for cause or unacceptable performance. Mr. Stone was not an at will employee or hired for a limited term. As this Court has explained previously, “an employee, as defined by 5 U.S.C. § 7501, has a property right in his continued employment.” King v. Alston, 75 F.3d 657, 661 (Fed.Cir.1996). The next question we face is what process is due" }, { "docid": "6977249", "title": "", "text": "sum payment constituted remuneration for services for purposes of the Railroad Retirement Tax Act (RRTA), the equivalent of FICA for railroad employees, because the rights given up were those earned by past service— or seniority. The payment was similar to a severance package, which rewarded an employee for past service. Thus, according to the IRS, payments for past services, or seniority rights, are wages for FICA purposes. See also Abmhamsen, 228 F.3d at 1364 (“If the payments at issue were merely severance payments that were not conditioned on a release of any claims, they would constitute ‘wages’ because they would be compensation paid to the employees by their employer for the employer-employee relationship.”). Thus, we must determine whether the payments made under NDSU’s Early Retirement Program to tenured faculty in exchange for release of the faculty’s tenure rights are payments to relinquish contractual or property rights, payments pursuant to a contractual agreement, payments for past services, or something else. A. Tenured Professors The parties agree that tenure is a protected property right. In this circuit, a tenured professor at a state institution not only has a constitutional right to procedural due process, but also has “a substantive due process right to be free from discharge for reasons that are ‘arbitrary and capricious,’ or in other words, for reasons that are trivial, unrelated to the education process, or wholly unsupported by a basis in fact.” Morris v. Clifford, 903 F.2d 574, 577 (8th Cir.1990) (refusing to grant qualified immunity to university personnel for discharging a tenured professor at the University of North Dakota because a tenured professor’s right to substantive due process was clearly established); see also Mueller v. Regents of the Univ. of Minn., 855 F.2d 555, 559-60 (8th Cir.1988) (requiring substantial evidence to support the university’s decision to terminate a tenured professor protected by substantive due process). NDSU policy also provided that tenured faculty could not be terminated absent fiscal restraints or adequate cause. Thus, the faculty who gave up their tenure rights at NDSU in exchange for early retirement gave up the right not only to invoke proper" }, { "docid": "7408605", "title": "", "text": "due process right to a statement of reasons or a hearing on a state university’s decision not to renew his one-year contract, because non-renewal deprived him of neither “liberty” nor “property.” Although the Court held that an ordinary dismissal or failure to reemploy does not infringe the broad guarantee of “liberty,” it explained that “[t]here might be cases in which a State refused to re-employ a person under such circumstances that interests in liberty would be implicated.” 408 U.S. at 573, 92 S.Ct. at 2707. The Court suggested that liberty might be implicated if the state made charges against the employee which “might seriously damage his standing and associations in his community,” as, for example, accusations of dishonesty, disloyalty, or immorality. Ibid. Thus, “liberty” is implicated and procedural due process is required when government action threatens an employee’s good name, reputation, honor, or integrity. Ibid. See Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952). Secondly, the Court explained that government dismissal may abridge liberty if it imposes a “stigma or other disability” which forecloses a discharged employee’s freedom to take advantage of other employment opportunities. 408 U.S. at 573, 92 S.Ct. 2701. Applying these standards, we conclude that both McNeill and Canady had a right to some form of procedural due process because the government’s discharge for cause deprived them of “liberty” in the constitutional sense. The government accused McNeill of improperly obtaining the benefits of a lease and improperly procuring annual CAP payments. Neither averment states merely a technical violation of Agriculture Department regulations. On the contrary, the charges imply that McNeill defrauded a farm owner and the government. Similarly, the government accused Canady of substituting erroneous or fraudulent documents for ones she had mutilated. Again, the charges smack of deliberate fraud. These relatively serious accusations in effect allege dishonesty and thereby impugn plaintiff’s good name, reputation, honor, and integrity. Roth teaches that the fifth amendment would enjoin the government from so stigmatizing a dismissed employee without providing at least" }, { "docid": "20632367", "title": "", "text": "level of a constitutionally protected interest.” Hughes, 765 So.2d at 536. Certain contract situations, however, such as a “public college professor dismissed from an office held under tenure provisions,” or “staff members dismissed during the terms of their contracts,” have contractual rights creating “an interest in continued employment that [is] safeguarded by due process.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 566-67, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (citing respectively, Slochower v. Bd. of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956), and Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952)). Mississippi courts have held that employee manuals become part of the employment contract, creating contract rights to which employers may be held, such as Dr. Whiting’s right to the procedures outlined in the handbooks. Robinson v. Bd. of Trustees of E. Cent. Junior Coll., 477 So.2d 1352, 1353 (Miss.1985); see also, Bobbitt v. The Orchard Dev. Co., 603 So.2d 356, 361 (Miss.1992). The 5th Circuit has held that where a property right to procedural protections existed under state law, those procedural guarantees constituted a property interest protected under due process. Samuel v. Holmes, 138 F.3d 173, 177 (1998) (analyzing a non-tenured employee’s claim where a Louisiana statute directed school districts to promulgate policies for dismissal of such employees; claimant had property interest in procedural guarantees). However, even if Dr. Whiting’s contractual rights are sufficient to constitute a property interest warranting due process protection, it is not clear that she has adequately alleged any sort of deprivation. Indeed, reviewing the history of her tenure application suggests that she has been afforded the processes guaranteed her. Potential deficits arise in three areas. First, Dr. Whiting alleges that “[s]he [was] entitled to a presidential decision by May 1 [of 2002, the end of the academic year in which she applied for tenure]” but that the President did not reach a decision until late August 2002. The Faculty Handbook, however, states “Presidential decisions are normally communicated to affected parties by May 1.” The word “normally” suggests that there may be" }, { "docid": "1252943", "title": "", "text": "us and we need not reexamine in detail. In Freeman v. Gould Special School District of Lincoln County, Ark., 405 F.2d 1153 (8th Cir. 1969), we considered the case of six school teachers whose contracts were not renewed at their termination. In Arkansas, as in Iowa, the law does not provide for a tenure system, but rather teachers are employed on an annual contract with automatic renewal unless written notice to the contrary is given within a prescribed time. The Arkansas law did not (unlike Iowa) provide for a hearing, although one was given. It was the claim of the teachers that the Board’s decision not to rehire them, on the basis of a recommendation by the principal, was arbitrary, eapri- cious, and unreasonable, thereby violating the due process and equal protection clauses of the Fourteenth Amendment. We held not. It was our holding (q.v.) that in the absence of a tenure statute a local school board has the right to decline to employ or to re-employ any teacher for any reason or for no reason as long as such a decision is not violative of a specific constitutional right. As we there said: Almost all of the cases cited in support of plaintiffs’ [teachers’] position are concerned with either racial discrimination or an invasion of a constitutionally protected right or privilege by way of a statute or regulation. We agree that the teachers are protected under the Equal Protection Clause from discrimination on account of race or religion or in their assertion of constitutionally protected rights, but no case cited by plaintiffs had gone so far as to say that all actions of any government board or agency in employment cases must accord the individual due process under the Fourteenth Amendment so as to provide tenure and a right to retain the position, except for cause. And “for cause” presupposes a right to hearing, notice, and appeal. Many government employees are under civil service and some under tenure. Absent these security provisions a public employee has no right to continued public employment, except insofar as he may not be" } ]

[ { "docid": "22700803", "title": "", "text": "the court clarify or revise the terms he now contends are impermissi-bly vague and ambiguous. As we have already concluded, Miller cannot collaterally attack the validity of his underlying sentence in an appeal of his supervised-release revocation. In sum, were we to consider Miller’s arguments with respect to Special Condition 9, we would conclude that the District Court did not clearly err in finding that Miller violated the condition, nor did the court abuse its discretion in revoking Miller’s release based on such violation. Miller next argues that the sentence imposed by the District Court was both procedurally unsound and substantively unreasonable. We review a district court’s revocation sentencing decisions us ing the same standards that we apply to initial sentencing decisions. United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005). In reviewing for abuse of discretion, we must first ensure that the court committed no significant procedural error, such as improperly calculating the sentence under the Guidelines, failing to consider relevant 18 U.S.C. § 3553(a) sentencing factors, imposing a sentence based on clearly erroneous facts, or failing to adequately explain the reasons for the sentence imposed. See Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Procedural sentencing errors are forfeited, and therefore may be reviewed only for plain error, if no objection was raised in the district court. See United States v. Bain, 537 F.3d 876, 881 (8th Cir.2008). Once we are satisfied that the sentencing decision is free of significant procedural error, we consider the substantive reasonableness of the length of the sentence under an abuse-of-discretion standard. Gall, 128 S.Ct. at 597. A defendant need not object to preserve an attack on the length of the sentence imposed if he alleges only that the District Court erred in weighing the § 3553(a) factors. See United States v. Wiley, 509 F.3d 474, 477 (8th Cir.2007) (noting that no objection is required to preserve the error where a defendant asserts only that the length of his sentence is unreasonable). According to Miller, the District Court committed procedural sentencing error by improperly imposing" } ]

[ { "docid": "7857382", "title": "", "text": "180 months imprisonment and ten years supervised release. As a special condition of supervised release, the district court prohibited both defendants from using alcohol and “from entering bars, taverns, or other establishments whose primary source of income is derived from the sale of alcohol.” Forde and Toliver appeal. II. DISCUSSION A. Forde’s Sentence The district court calculated Forde’s advisory United States Sentencing Guidelines (U.S.S.G. or Guidelines) range to be 262 to 327 months imprisonment (total offense level of 34 and criminal history category of VI). After considering the 18 U.S.C. § 3553(a) factors, and specifically recognizing “the drug quantities” involved in Forde’s offenses, “the length of time, and the fact that [Forde] is a recidivist,” the district court imposed a 327-month sentence. Forde claims her sentence is unreasonable. ‘We review the substantive reasonableness of a sentence under an abuse of discretion standard.” United States v. Kowal, 527 F.3d 741, 749 (8th Cir.2008) (citing Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). A district court abuses its discretion when “it fails to consider a relevant factor that should have received significant weight, gives significant weight to an improper or irrelevant factor, or considers only the appropriate factors but commits a clear error of judgment in weighing those factors.” Id. (quoting United States v. Watson, 480 F.3d 1175, 1177 (8th Cir.2007) (internal quotation marks omitted)). “[I]t will be the unusual case when we reverse a district court sentence — whether within, above, or below the applicable Guidelines range — as substantively unreasonable.” United States v. Feemster, 572 F.3d 455, 464 (8th Cir.2009) (en banc) (quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C.Cir.2008) (internal quotation marks omitted)). Forde’s primary argument is that the district court improperly weighed cer tain factors in determining her sentence. Forde contends “[t]he district court did not truly consider” her claim that her relationship with an abusive boyfriend “turned her into a drug dealer.” But a review of the sentencing transcript shows the district court expressly considered and rejected Forde’s claim. This analysis was well within the district court’s discretion." }, { "docid": "9423642", "title": "", "text": "TORRUELLA, Circuit Judge. Jessie Butler-Acevedo (“Butler”) appeals from two concurrent five-year sentences following the revocation of supervised release, pursuant to 18 U.S.C. § 3583(e). Butler argues that the district court committed procedural error in imposing the statutory maximum sentences available. For the reasons stated below, we affirm. I. Background Butler pleaded guilty in 2000 to two drug-related conspiracies. At the sentencing following the guilty plea, the district court imposed two concurrent ten-year sentences with subsequent five-year terms of supervised release, also to be served concurrently. In 2008, Butler was released from custody and began his supervised release. The supervised release was not successful. Approximately fourteen months after Butler’s release, the U.S. Probation Office (“USPO”) filed a motion notifying the court of four violations; a later filing supplemented the initial motion, reporting six additional violations. At his revocation hearing, Butler admitted to these ten violations, which ranged in severity from failing to obtain lawful employment to associating with individuals engaged in the trafficking of narcotics. Although the recommended sentence under the U.S. Sentencing Guidelines Manual (“U.S.S.G.”) was three to nine months of incarceration, the court ultimately sentenced Butler to sixty months in each case, which was the statutory maximum sentence available because the underlying offenses were Class A felonies. See 18 U.S.C. § 3583(e)(3). Butler now appeals these sentences. II. Discussion Butler argues that his sentencing was procedurally flawed because the district court failed to consider the factors set out in 18 U.S.C. § 3553(a) that it was required to consider under 18 U.S.C. § 3583(e). He also contends that the sentence should be vacated because the district court was not clear about what sentence it was imposing. We address each argument in turn after providing the relevant legal background. A. Standard of Review “We review revocation sentences for abuse of discretion.” United States v. McInnis, 429 F.3d 1, 4 (1st Cir.2005). In doing so, we examine “both the procedural and the substantive propriety of a challenged sentence.” United States v. Santiago-Rivera, 594 F.3d 82, 84 (1st Cir.2010). B. Legal Framework for Revocation A court may revoke a defendant’s supervised release" }, { "docid": "22534669", "title": "", "text": "18, 2008, when Petreikis was arrested in New York. The United States District Court for the Western District of New York transferred Pe-treikis to the District of Minnesota. On May 15, 2008, Petreikis appeared before the Minnesota district court for his revocation hearing. Petreikis admitted he violated the terms of his supervised release by failing to maintain contact with his probation officer. Petreikis’s attorney advised the district court Petreikis moved to Canada in 2000, and was arrested on the warrant after Petreikis was expelled from Canada in 2008. After hearing from both Petreikis and the government, the district court sentenced Petreikis to 9 months imprisonment followed by Petreikis’s original term of supervised release with additional conditions. II. DISCUSSION “On appeal, we may consider both the procedural soundness of the district court’s decision and the substantive reasonableness of the sentence imposed.” United States v. Merrival, 521 F.3d 889, 890 (8th Cir.2008). “We review a revocation sentence under the same ‘reasonableness’ standard that applies to initial sentencing proceedings[.]” Id. (citing United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005)). “[W]e review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard.” Id. (citing Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). The advisory Guidelines recommend a sentencing range of 3 to 9 months imprisonment based upon Petreikis’s admission to a grade C violation of his supervised release and his criminal history category of I, which was calculated at the time Petreikis was originally sentenced to supervised release. See U.S.S.G. § 7B1.4(a). Petreikis acknowledges his revocation sentence was within the Guidelines range, but argues the district court (1) committed procedural error by failing to give explicit consideration to the 18 U.S.C. § 3553(a) factors, and (2) imposed a substantively unreasonable sentence. “A sentence within the Guidelines range is accorded a presumption of substantive reasonableness on appeal.” United States v. Perkins, 526 F.3d 1107, 1110 (8th Cir.2008) (citing United States v. Robinson, 516 F.3d 716, 717 (8th Cir. 2008)). “[W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will" }, { "docid": "23179328", "title": "", "text": "mandatory contain Booker error.”). The defendant must establish that the error affected substantial rights, that is, a reasonable probability of a lesser sentence. Pirani, at 550, 553. For Booker error, the defendant can prove this by showing that “the district court would have imposed a more favorable sentence under the advisory guidelines regime mandated by Booker.” Id. at 553. McCully was sentenced at the bottom of the applicable guidelines range, but this is insufficient, without more, to demonstrate a reasonable probability of a lesser sentence. See Pirani, 406 F.3d at 553. The record on appeal does not indicate that the district court would have imposed a more favorable sentence absent the Booker error. See id. Therefore, McCully has not met her burden of proving prejudicial plain error. Finally, McCully claims the sentence is excessive. Although she does not state her claim in terms of reasonableness, this court now reviews the sentence for unreasonableness. See Booker, 125 S.Ct. at 767. Considering the then-mandatory guidelines, the district court imposed a 168-month sentence — at the bottom of the guidelines range. Because this is the sentence she requested, generally she cannot complain on appeal. See United States v. Harrison, 393 F.3d 805, 808 (8th Cir.2005). To the extent McCully’s statements at sentencing qualify her counsel’s request for the 168-month sentence, this court reviews the record in light of the factors in 18 U.S.C. § 3553(a), and finds that the sentence is not unreasonable. This court thus affirms, and denies counsel’s motion to withdraw because, at this time, the Sixth Amendment and reasonableness arguments are not frivolous. . The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri. . McCully’s counsel, in the Anders brief, notes that this court has held that it lacks jurisdiction to review for excessiveness those sentences that are within the applicable guidelines range. See United States v. Smotherman, 326 F.3d 988, 989 (8th Cir.), cert. denied, 540 U.S. 912, 124 S.Ct. 293, 157 L.Ed.2d 203 (2003); United States v. Garrido, 38 F.3d 981, 986 (8th Cir.1994); United States v. Mihm, 13 F.3d 1200," }, { "docid": "21512379", "title": "", "text": "SHEPHERD, Circuit Judge. Juan Johnson appeals from a twenty-four month sentence imposed by the district court following revocation of his supervised release. Johnson argues the district court committed procedural error and the sentence is substantively unreasonable. He also appeals the district court’s refusal to recuse from the case and attempts to bring a claim of ineffective assistance of counsel. We have jurisdiction under 28 U.S.C. § 1291 and affirm. I. Johnson pled guilty to wire fraud in violation of 18 U.S.C. §§ 1343 and 2 on July 27, 2011. On February 10, 2012, Johnson was sentenced to time served, followed by 3 years of supervised release, and was ordered to pay restitution in the amount of $74,724-02. During 2012, Johnson repeatedly violated the terms of his supervised release. His supervised release was again revoked on September 20, 2012, but he was given credit for time served and placed on a new period of supervised release for thirty months. Based on charges of domestic assault and assault on law enforcement officers that occurred on December 26, 2012, the United States Probation Office filed a violation report on December 27, 2012, and Johnson’s supervised release was revoked for a third time that day. He was ultimately sentenced to twenty-four months imprisonment on February 4, 2015. Johnson appeals from this sentence. On December 12, 2014, Johnson wrote a letter to his federal public defender and the court clerk, requesting new counsel and requesting the Honorable Brian C. Wimes, United States District Judge for the Western District of Missouri, be reassigned to his case. Johnson appeared in court for his final revocation hearing on December 18, 2014 before the Honorable M. Douglas Harpool. Judge Harpool inquired about Johnson’s pro se letter, and Johnson expressed his belief that Judge Harpool was “prejudiced toward[ ] blacks.” When asked why he believed such a prejudice existed, Johnson named one case and claimed other cases exemplified prejudice but that he could not list them at that time. Johnson also testified that he never consented to a reassignment of the case to a new judge despite the fact that," }, { "docid": "14117515", "title": "", "text": "States, —— U.S. —, 128 S.Ct. 558, 576, 169 L.Ed.2d 481 (2007) (reversing Fourth Circuit decision: “Giving due respect to the District Court’s reasoned appraisal, a reviewing court could not rationally conclude that the 4.5-year sentence reduction Kimbrough received qualified as an abuse of discretion.”). I The Supreme Court recently set forth the role of appeals courts in reviewing sentences: We must review a sentence under an abuse of discretion standard, ensuring both that the District Court did not commit a “significant procedural error” and that the sentence is substantively reasonable. Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). In assessing procedural compliance, we are to ensure that the District Court did not: incorrectly calculate the Guidelines range, fail to consider the § 3553(a) factors, rely on clearly erroneous facts, treat the Guidelines as mandatory, or fail to explain the chosen sentence and any deviation from the Guidelines range. Id.; see also 18 U.S.C. § 3553(c) (“The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence” and must give “the specific reason for the imposition of a sentence” outside the Guidelines range.). A In this case, the District Court committed no procedural error, much less “significant procedural error,” under Gall. The District Court’s hearing on whether to revoke the defendant’s supervised release lasted more than eight hours. After listening to testimony and argument, the District Court found that the defendant had repeatedly violated his supervised release. The District Court thoroughly detailed the defendant’s violations, including three instances of the defendant’s leaving the judicial district without permission, two instances of the defendant’s failing to follow the probation officer’s instructions, and the defendant’s repeated failure to provide “complete and truthful financial information” to verify his income. Nov. 27 Tr. at 298. In light of those facts, the court possessed authority under 18 U.S.C. § 3583(e) to revoke the defendant’s supervised release. See also U.S. Sentencing Guidelines Manual § 7B1.3(a). The court did so, stating: “I find that [the defendant] has violated the conditions of" }, { "docid": "15538110", "title": "", "text": "Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Emmanuel Washington appeals the district court’s judgment imposing a 27-month prison sentence upon the revocation of his supervised release. Although Washington does not contest the revocation on appeal, he maintains that the district court’s sentence is not reasonable as it was premised upon an improper calculation of the Chapter Seven policy statement range, see U.S. Sentencing Guidelines Manual (“USSG”) (2007), because the state crimes for which he was convicted do not fit the criteria for a Grade A violation. He also contends that the district court impermis-sibly considered testimonial hearsay, in violation of the Sixth Amendment’s Confrontation Clause, and erred in considering conduct for which he was acquitted in state court. Finally, he argues that the district court failed to consider the 18 U.S.C. § 3553(a) (2006) factors and to provide a sufficient explanation for the 27-month sentence. We affirm. We review a sentence imposed after revocation of supervised release to determine whether it is plainly unreasonable. United States v. Crudup, 461 F.3d 433, 437-40 (4th Cir.2006). The first step in this analysis is whether the sentence was unreasonable. Id. at 438. In conducting this review, this court follows generally the procedural and substantive considerations employed in reviewing original sen tences. Id. The district court commits procedural error by improperly calculating the Guidelines. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). In assessing whether the district court properly applied the Guidelines, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, — U.S. -, 128 S.Ct. 2525, 171 L.Ed.2d 805 (2008). For mixed questions of law and fact, we apply a due deference standard in reviewing the district court. Id. Although the district court must consider the policy statements in Chapter Seven of the Sentencing Guidelines and the statutory factors in § 3553(a) and 18 U.S.C. § 3583, “the court ultimately has broad discretion to revoke its previous" }, { "docid": "14117501", "title": "", "text": "the conclusion of the hearing, the district judge specifically found Appellant had committed several of the violations charged by the probation office. The judge also said any defendant who came back before him for violating his supervised release faced only one question: “how long he’s going to prison for, not whether he’s going,” Hr’g Tr. 298, Nov. 26-27, 2007. The district judge pointed out he had explained this policy to the defendant at the original sentencing. Further, the judge explained Appellant “cannot be supervised, he would not be supervised, he will not be supervised.” Id. Having decided to revoke the release, the district judge told counsel he was “going to consider an upward departure,” recognizing the Sentencing Guidelines recommendation was three to nine months in prison but observing he had discretion to sentence Appellant to five years because of his underlying convictions. Id. at 298-99. The probation office requested the full five-year sentence, while the government recommended twelve months; but Appellant’s counsel argued for a lenient sentence for violations even the government deemed relatively minor. In the end, the district judge sentenced Appellant to eighteen months’ incarceration, giving no further explanation of his reasons. Appellant challenges this sentence as unreasonable, both substantively (because eighteen months is too much for what he claims were minor violations) and procedurally (because the district judge failed to state reasons for the sentence). Appellant also appeals the decision to revoke his supervised release because he claims the judge applied a uniform policy rather than considering his individual circumstances. We reject that challenge, but we cannot assess whether the eighteen-month sentence is unreasonable in the absence of any explanation. Accordingly, we vacate the sentence and remand the case to the district court. II A Discretion over sentencing lies entirely with district courts, and we may only review a court’s decision for abuse of discretion if it is proeedurally sound. Gall v. United States, — U.S. -, 128 S.Ct. 586, 597-98, 169 L.Ed.2d 445 (2007); see also United States v. Bolds, 511 F.3d 568, 578 (6th Cir.2007) (applying Gall to a revocation of supervised release). This allocation" }, { "docid": "22193446", "title": "", "text": "worked: (1) Stults has a number of computers (two to three towers); (2) Stults had a large database; (3) Stults had saved substantial data obtained from other LimeWire users and kept it on CDROMs; (4) Stults’s computer contained many images; and (5) a lot of data was in Stults’s machine. In light of this circumstantial evidence, “we conclude there was sufficient evidence in the record to support the district court’s ultimate finding and that it was not clearly erroneous.” United States v. Cordy, 560 F.3d 808, 817 (8th Cir.2009). E. Reasonableness of Sentence Stults maintains that even if this court finds that the district court’s sentence is not procedurally flawed, it remains a substantively unreasonable sentence because it is greater than necessary to promote the goals of 18 U.S.C. § 3553(a). In response, the government points out that the district court sentenced Stults well below the advisory Guidelines range of 188 to 235 months to 144 months’ imprisonment. “Absent reversible procedural error, we ... review the reasonableness of the court’s sentence for abuse of discretion.” Vickers, 528 F.3d at 1120. Where the district court in imposing a sentence makes “an individualized assessment based on the facts presented,” addressing the defendant’s proffered information in its consideration of the § 3553(a) factors, such sentence is not unreasonable. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007) (in reviewing sentence for abuse of discretion, appeals court must first ensure there was no significant procedural error, and then assess substantive reasonableness of sentence); see also United States v. Haack, 403 F.3d 997, 1004 (8th Cir.2005) (listing circumstances that may warrant finding of abuse of discretion). Here, the district court issued a sentencing memorandum in which it thoroughly discussed all of the § 3553(a) factors. Furthermore, at the sentencing hearing, the district court adequately explained why it was sentencing Stults below the applicable Guidelines range of 188 to 235 months. Accordingly, we hold that a sentence of 144 months’ imprisonment is not substantively unreasonable. F. Special Conditions of Supervised Release Stults’s final argument is that four of the special" }, { "docid": "23175802", "title": "", "text": "not abuse its discretion in considering the availability of drug treatment in imposing a sentence exceeding that which was recommended in Chapter Seven). Accordingly, we conclude that the district court did not err, nor did it abuse its discretion, in sentencing Cook beyond the Chapter Seven recommended range. III. CONCLUSION In summary, the district court did not err in ordering Cook to serve a sentence of twenty-four months in prison because the district court complied with the provisions of subchapter A. For the foregoing reasons, we affirm the district court’s order, dated September 24, 2001, which sentenced Cook to twenty-four months in prison. AFFIRMED. . At the September 24th hearing, Cook argued that the positive results from drug tests conducted on May 30th and August 24th should not be considered as grounds for revoking probation because the drug use occurred before the August 24th hearing, in which the district court had modified probation. However, the government indicated that Cook failed the drug test on August 24th after the hearing had already been conducted on that day. Implicitly rejecting Cook’s argument by considering Cook’s failed drug tests as one of the grounds for revocation, the district court concluded that Cook violated the terms and conditions of her probation. Because on appeal Cook challenges only the length of her sentence and does not challenge the district court’s finding that she actually violated her probation, we do not address whether the timing of the failed drug tests was significant. . We review de novo the legality of a sentence. See United States v. Aimufa, 122 F.3d 1376, 1378 (11th Cir.1997) (sentence imposed pursuant to revocation of a term of supervised release). A district court’s decision to depart from the Chapter Seven recommended sentencing range is reviewed for an abuse of discretion. United States v. Dunham, 240 F.3d 1328, 1330 (11th Cir.2001). . Although this Court has concluded previously that a district court cannot exceed the original guideline range when resentencing a probationer, these cases do not apply in this case because they were decided under, and with specific reference to, the pre-1994 amendment" }, { "docid": "22195189", "title": "", "text": "McKEOWN, Circuit Judge:. Debbie George appeals a 23-month sentence imposed upon revocation of her supervised release. George contends that the district court erred by failing to sentence her within the 7-to-13 month range outlined in the policy statements set forth in Chapter 7 of the Sentencing Guidelines. We hold that, in determining an appropriate sentence upon revocation of supervised release, a district court must consider but is not bound by the Chapter 7 policy statements. We therefore affirm George’s sentence. I. Background In July 1993, George, a convicted felon, pleaded guilty to possession of a firearm in violation of 18 U.S.C. § 922(g)(1). She received a sentence of 70 months, followed by a three-year term of supervised release with standard and special conditions. In October 1998, the district court found George in violation of various conditions of her supervised release. The district court revoked George’s supervised release and sentenced her to 23 months imprisonment. Prior to sentencing, George’s counsel argued that George should receive a term within the 7-to-13 month range stated in U.S.S.G. § 7B1.4, p.s. The district court rejected the argument, concluding that the ranges in section 7B1.4 are not binding. II.Standard of Review We review de novo the district court’s application of the Sentencing Guidelines. United States v. Nieblas, 115 F.3d 703, 705 (9th Cir.1997). We review for abuse of discretion the district court’s consideration of non-binding policy statements. See United States v. Contreras, 63 F.3d 852, 855-56 (9th Cir.1995). III.Revocation of Supervised Release Upon finding that a defendant has violated a condition of supervised release, the district court may “revoke a term of supervised release” and “require the defendant to serve in prison all or part of the term of supervised release authorized by statute,” not to exceed a certain number of years, depending on the nature of the original offense. 18 U.S.C. § 3583(e)(3). In doing so, the court must consider the factors set forth in certain subsections of 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(e). The issue in this case concerns the effect of the 1994 amendments to subsection (4) of section" }, { "docid": "22959485", "title": "", "text": "also ordered three years of supervised release on each count, to run concurrent to each other, and imposed special conditions of supervised release. These special conditions require Richart to participate in sex-offender treatment and prohibit her from having direct contact with minors under the age of eighteen without written permission from the probation office, from entering into any area where children frequently congregate, and from possessing, subscribing to, or viewing any video, magazines, or literature depicting children in the nude or in sexually explicit positions. The district court explained that its reason for imposing these special conditions was its finding that Richart had abused children physically and sexually. Richart appeals her sentence, arguing that it is both procedurally unsound and substantively unreasonable. She also contends that the district court abused its discretion in imposing two of the special conditions of supervised release. II. Discussion A. Procedural Error “When we review the imposition of sentences, whether inside or outside the Guidelines range, we apply a deferential abuse-of-discretion standard.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc) (internal quotations marks omitted). “In reviewing a defendant’s sentence, we first ensure that the district court did not commit significant procedural error; then, absent significant procedural error, we review the sentence for substantive reasonableness.” United States v. Frausto, 636 F.3d 992, 995 (8th Cir.2011) (internal quotation marks and alterations omitted). “Procedural errors include ‘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.’ ” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). “In reviewing a sentence for procedural error, we review the district court’s factual findings for clear error and its application of the [Guidelines de novo.” Id. (internal quotations marks omitted). (i) Adjustment for Role in Offense Richart contends that the district court erred in calculating the advisory Guidelines range by applying a two-level enhancement pursuant to U.S.S.G. § 3Bl.l(c). A district court may" }, { "docid": "22254677", "title": "", "text": "prohibited him from drinking alcohol. At his revocation hearing before the district court, Polihonki pled guilty to those violations. Prior to the revocation hearing, a probation officer submitted to the district court a Supervised Release Violation Report (SRVR), which recommended revocation of Polihonki’s term of supervised release and a new term of imprisonment. Polihonki’s Guidelines range was calculated to be 5 to 11 months of imprisonment, with a recommended sentence of 11 months. The district court revoked Polihonki’s supervised release pursuant to 18 U.S.C. § 3583(e)(3) and sentenced him to 13 months in prison, with orders for alcohol-abuse and mental-health counseling, to be followed by 22 months of supervised release accompanied by ongoing alcohol-abuse treatment. Poli-honki filed a timely appeal of his sentence. II. ANALYSIS A. Standard of review The district court may revoke a defendant’s term of supervised release and require the defendant to serve a new term of imprisonment pursuant to 18 U.S.C. § 3583(e). In this circuit, “[sentences imposed following revocation of supervised release are to be reviewed under the same abuse of discretion standard that we apply to sentences imposed following conviction.” United States v. Bolds, 511 F.3d 568, 578 (6th Cir.2007). The district court’s sentencing determination is reviewed “under a deferential abuse-of-discretion standard” for reasonableness, which has both a procedural and a substantive component. Gall v. United States, — U.S.-, 128 S.Ct. 586, 591, 598, 169 L.Ed.2d 445 (2007); see also United States v. Carter, 510 F.3d 593, 600 (6th Cir.2007). We must first ensure that the district court committed no procedural error in sentencing the defendant. Id. at 597; United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). A district court necessarily abuses its sentencing discretion if it commit[s][a] 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, 128 S.Ct. at 597. If the district court’s sentencing decision is procedurally" }, { "docid": "21532831", "title": "", "text": "to accept his offer because he was “being treated so poorly,” and Benita testified she understood Petersen’s message to mean Petersen would in fact pay her $100 and her fines if she assaulted Cole. In addition, Petersen’s threatening comments made to Speicher and then Petersen’s own testimony demonstrate he was “upset” with Cole. Petersen testified he never called Benita after leaving the voice mail and never attempted to withdraw his offer of payment for the assault. The district court did not clearly err in finding these facts, and taken together, these facts show by a preponderance of the evidence Peter sen solicited Benita to assault Cole and thus violated a condition of his supervised release. Petersen also challenges his 8 months imprisonment as substantively unreasonable. “We review the substantive reasonableness of a sentence for abuse of discretion.” United States v. Harlan, 815 F.3d 1100, 1107 (8th Cir. 2016). A district court abuses its discretion in sentencing “if the district court ‘fails to consider a relevant factor that should have received significant weight, gives significant weight to an improper or irrelevant factor, or considers only the appropriate factors but commits a clear error of judgment in weighing those factors.’” United States v. Lozoya, 623 F.3d 624, 626 (8th Cir. 2010) (quoting United States v. Watson, 480 F.3d 1175, 1177 (8th Cir. 2007)). We may apply a presumption of reasonableness to a sentence within the Guidelines range. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “ ‘[I]t will be the unusual case when we reverse a district court sentence — whether within, above, or below the applicable Guidelines range — as substantively unreasonable.’ ” United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)). As Petersen points out, he complied with all conditions of his supervised release for the nearly two years immediately preceding the current incident, yet the district court had previously modified his term of superviséd release in March 2014 for failure to comply with drug testing." }, { "docid": "22395372", "title": "", "text": "at 2468; Franklin, 397 F.3d at 607. If a district court “references some of the considerations contained in § 3553(a), we are ordinarily satisfied that the district court was aware of the entire contents of the relevant statute.” United States v. White Face, 383 F.3d 733, 740 (8th Cir.2004) (internal quotation omitted). At the time of sentencing, after hearing arguments from both parties, the district court simply remarked that “the record speaks for itself.” Because Perkins did not object to the district court’s articulation of its reasoning, we review that issue for plain error. Franklin, 397 F.3d at 607. We note that the district court that presided over Perkins’s revocation hearing was the same court that imposed Perkins’s initial sentence, modified the conditions of his supervised release to require participation in the substance abuse program, and issued the warrant for his arrest after he absconded from the program. Accordingly, we are satisfied that the court was familiar with Perkins’s history, characteristics, and conduct. See id. The district court revoked Perkins’s supervised release after finding that he had failed to participate in a necessary rehabilitation program outside of the prison system and that he had assaulted a law enforcement officer. At the outset of the revocation hearing, the district court explicitly discussed with counsel the calculation of the suggested sentence under Chapter 7 of the Guidelines, as well as the statutory maximum. Perkins’s revocation sentence falls in the middle of the suggested range of twenty-one-to-twenty-seven months and does not exceed the statutory maximum. In sum, our review of the record satisfies us that the district court considered the relevant § 3553(a) factors and that it did not abuse its discretion in revoking Perkins’s supervised release or in imposing the twenty-four month sentence, which we do not find to be unreasonable. In any event, any error on the district court’s part in offering no more than an abbreviated articulation of its reasoning did not prejudice Perkins’s substantial rights. See id. The judgment is affirmed. . The Honorable Nanette K. Laughrey, United States District Judge for the Western District of Missouri." }, { "docid": "21532828", "title": "", "text": "in February 2016. At a revocation hearing held April 19, •2016, the district court explicitly relied on statements made by Speicher, the deputy sheriff, and Benita and found Petersen not totally credible. The district court found Petersen committed the new crime of solicitation to commit an aggravated misdemeanor, which it treated as a grade C violation under United States Sentencing Guidelines (U.S.S.G. or Guidelines) § 7Bl.l(a)(3). Based on that violation and Petersen’s criminal history category II at the time of his original sentencing, the Guidelines range of imprisonment was 4 to 10 months. See id. § 7B1.4. The government requested a revocation sentence within the Guidelines range, but Petersen asked for no more than 30 days in jail. The district court considered the 18 U.S.C. § 3553(a) factors and noted Petersen had a history of mental illness, substance abuse, and violent tendencies and was a high risk to recidivate. The district court revoked Petersen’s supervised release and sentenced him to 8 months imprisonment followed by a one-year term of supervised release. Petersen filed this timely appeal, asserting (1) the evidence was insufficient to show by a preponderance that he committed a new offense, and (2) 8 months imprisonment was a substantively unreasonable sentence. II. DISCUSSION A district court may “revoke supervised release if the government proves by a preponderance of the evidence that the defendant violated a condition of supervised release.” United States v. Boyd, 792 F.3d 916, 919 (8th Cir. 2015); see also 18 U.S.C. § 3583(e)(3). We review such a revocation decision for abuse of discretion, and we review any findings of fact as to whether or not a violation occurred for clear error. See Boyd, 792 F.3d at 919. We reverse a revocation decision only if we have “ ‘a definite and firm conviction that the District Court was mistaken.’” Id. (quoting United States v. Willis, 433 F.3d 634, 636 (8th Cir. 2006)). The district court found by a preponderance of the evidence Petersen committed the state crime of soliciting an aggravated misdemeanor. Iowa Code § 705.1 prohibits “commanding], entreating], or otherwise attempting] to persuade [another] person" }, { "docid": "23491756", "title": "", "text": "PER CURIAM: Petitioner Julie Ann Receskey (“Receskey”) appeals her revocation sentence because she contends the length of her sentence was impermissibly based on the court’s perception of her rehabilitative needs in violation of Tapia v. United States, — U.S. -, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011). The district court sentenced Receskey to 30 months of imprisonment upon revocation of her supervised release, which was above the recommended guideline range. Receskey challenges the reasonableness of that sentence, arguing that the district court imposed it for the sole purpose of allowing her to participate in available drug treatment programs. We conclude that while the district court discussed opportunities for rehabilitation, it did not base Receskey’s sentence or lengthen the sentence for rehabilitative purposes and that the sentence is not plainly unreasonable. We therefore affirm. I. Receskey pled guilty to possession with intent to distribute methamphetamine. The district court sentenced her to 46 months in prison and 5 years of supervised release. Her supervised release began on May 2, 2008. In June of 2011, Receskey’s probation officer charged Receskey with multiple violations of the conditions of her supervision, including heroin use and failure to comply with her required inpatient substance abuse and mental health treatment. The district court held a revocation hearing on June 23, 2011. At the hearing, Receskey pled true to all allegations. Receskey’s attorney said that while her problems stemmed from drug addiction, she had shown herself capable of staying off of drugs for long periods and of working successfully at a job. He urged a sentence within the recommended guideline range of 3-9 months. The court engaged Receskey in a discussion of some of her past problems with drugs and the law. It noted the leniency of her 46 month sentence in light of her drug charges and found that despite previous violations of her conditions of release, her release had not been revoked in those instances. The district court revoked Receskey’s supervised release and sentenced her to 30 months in prison and an additional 24 months of supervised release. Due in large part to the fact that" }, { "docid": "23607666", "title": "", "text": "PER CURIAM. Carl D. Edwards brings this appeal following the revocation of his supervised release. His attorney has filed a brief on his behalf pursuant to Anders v. California, 386 U.S. - 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), seeking to withdraw as counsel. Finding no nonfrivolous issues, we affirm the district court’s revocation of Edwards’s supervised release and accompanying sentence and conditionally grant counsel’s motion to withdraw. Following the completion of his prison term for ah armed bank robbery conviction, Edwards was alleged to have violated the conditions of his supervised release. On July 21, 2004, Edwards admitted to violating the terms of his release by unlawfully using a controlled substance. The court then imposed a sentence of five months of imprisonment and three years of supervised release. Given Edwards’s admission of the violation, we find no clear error in the district court’s findings of fact supporting the revocation and no abuse of discretion in the decision to revoke Edwards’s supervised release. United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir.2003) (standard of review); see also 18 U.S.C. § 3583(e)(3) (empowering the district court to revoke a defendant’s supervised release where the defendant violates a superviséd release condition). .Although the Supreme Court’s re.cent. decision in United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), significantly changed the state of federal sentencing, its effect on sentences imposed for supervised release violations is far less dramatic. The United States Sentencing Guidelines associated with supervised release violations were considered advisory even before the Court’s decision in Booker. See United States v. White Face, 383 F.3d 733, 738 (8th Cir.2004) (recognizing that the policy statements in Chapter 7 of the guidelines, relating to supervised release violations, are advisory only). Thus, we find no error in the district court’s consultation of the guidelines in determining Edwards’s sentence. Moreover, our review- of the guidelines associated with supervised release violations reveals that, given Edwards’s criminal history and the nature of his violation, he received the lowest sentence suggested by the guidelines. USSG §§ 7B1.1, p.s., 7B1.4, p.s. We cannot" }, { "docid": "20869881", "title": "", "text": "PER CURIAM. Curtis Robert McGhee pleaded guilty to assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 1153 and 113(a)(6), and was sentenced to 71 months of imprisonment and three years of supervised release. He began his first term of supervised release on January 30, 2013. On January 26, 2015, McGhee’s probation officer filed a petition to revoke McGhee’s supervised release, alleging that he committed four violations of his release conditions: failing to reside and participate in a residential reentry center; engaging in conduct constituting simple assault in violation of tribal law; engaging in conduct constituting aggravated assault in violation of tribal law; and consuming alcoholic beverages. He admitted to the first and last of these, and the other two were dismissed, He was sentenced to nine months of imprisonment and eighteen months of supervised release. McGhee’s second term of supervised release began on February 24,2016. On June 28, 2016, his probation officer filed a petition to revoke supervised release, alleging that McGhee failed to notify .her ten days prior to changing his residence. McGhee admitted the violation. The district court concluded the advisory Guidelines range for the violation was six to twelve months of prison, but sentenced McGhee to eighteen months of imprisonment and eighteen months of supervised release. McGhee appeals, arguing that the district court committed procedural error in imposing his sentence and. that the sentence is substantively unreasonable. “We review a district court’s revocation sentencing decisions using the same standards that we ’ apply to initial sentencing decisions.” United States v. Miller, 557 F.3d 910, 915-16 (8th Cir. 2009). Under this standard, “we must first ensure that the court committed no significant procedural error, such as Improperly calculating the sentence under the Guidelines, failing to consider relevant 18 U.S.C. § 3553(a) sentencing factors, imposing a sentence based on clearly erroneous facts, or failing to adequately explain the reasons for the sentence imposed.” Id. at 916. Where, as here, the defendant did not object to procedural sentencing errors before the district court, they “are forfeited, and therefore may be reviewed only for plain error.” Id." }, { "docid": "22569477", "title": "", "text": "choice of sentence if the span of the particular range involved exceeds twenty-four months.”) (emphasis added). Our approach also appears consistent with that recently taken in other circuits. See United States v. Beaulieu, 900 F.2d 1531, 1536 (10th Cir. Apr. 17, 1990) (only general statement of “reasons” required where (1) and (2) not applicable); Williams, 891 F.2d at 923-24. However, we note that the statement of reasons was not intended to “become a legal battleground for challenging the propriety of a particular sentence or the probation or institutional program in which the defendant is placed.” S. Rep. at 80, U.S. Code Cong. & Admin.News at 3263. “Regardless of the grounds for appeal, the statement of reasons should not be subject to such legalistic analysis that will make judges reluctant to sentence outside the guidelines when it is appropriate or that will encourage judges to give reasons in a standardized manner.” Id. In this case, the district court did not err. The court made its reasons for imposing the sentence sufficiently clear. The district court stated: [T]he Defendant violated her supervised release involving new criminal conduct. It is not conduct constituting a petty offense and the Court, thereby, revokes her supervised release and, therefore, pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the Defendant is hereby committed to the custody of the Bureau of Prisons to be imprisoned for the term of her supervised release which is two years. This sentence is imposed in accordance with Section 7(a)1.3 Revocation of Supervised Release of the Sentencing Reform Act of 1984. R.T. 8/28/89 at 6. We find this sufficient to meet the general requirement of section 3553(c). AFFIRMED. . Congress modified this provision of the statute in 1987 to limit its applicability to sentences where the guideline range exceeds twenty-four months. . We note that even the district court in United States v. Duque, 883 F.2d 43 (6th Cir.1989), a case often cited for its holding that \"if the judge sentences within the appropriate guideline, and the range of the guideline does not exceed 24" } ]

[ { "docid": "57882", "title": "", "text": "appellant and General Counsel are in disagreement over the facts. Appellant also alleges that he was denied procedural due process. Attacking the constitutional adequacy of the ex parte investigations of the Regional Director and the General Counsel, he asserts he was entitled to a hearing at some point prior to final disposition of his unfair labor practice charge. We see no merit in appellant’s constitutional claim. First, it is doubtful that appellant has an “entitlement” to have an unfair labor practice complaint issue in the same sense that, for example, a welfare recipient has a statutory entitlement to benefits. See Goldberg v. Kelly, 1970, 397 U.S. 254, 261-262, 90 S.Ct. 1011, 25 L.Ed.2d 287. The remedies of the National Labor Relations Act have generally been construed as protecting public rather than private rights, and thus their invocation has been entrusted to the public agency Congress created to enforce the provisions of the Act. See Amalgamated Utility Workers v. Consolidated Edison Co., 1940, 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738. Second, even granting that appellant may be within the scope of due process protection, the particular interest he is seeking to protect does not seem to be of a nature serious enough to warrant imposition of a hearing requirement. See Cafeteria & Restaurant Workers Union v. McElroy, 1961, 367 U.S. 886, 894-897, 81 S.Ct. 1743, 6 L.Ed.2d 1230. We cannot equate it with the termination of welfare benefits which may be essential to an individual’s continued existence. See Goldberg v. Kelly, supra, 397 U.S. at 264, 90 S.Ct, 1011. Finally, we see important governmental interests, both fiscal and otherwise, that would be jeopardized should we require a hearing prior to a final decision on whether to issue an unfair labor practice complaint. At present the great majority of unfair labor practice cases are disposed of prior to formal hearing at the Board level. A. Cox and D. Bok, Cases on Labor Law, p. 138 (7th ed. 1969). To require a hearing in the case before us would be to require some form of hearing for every unfair labor practice" } ]

[ { "docid": "21174021", "title": "", "text": "the ambit of judicial review. Gunther v. San Diego, Arizona E. R. Co., No. 27 — decided December 8, 1965, 86 S.Ct. 368; Brotherhood of Locomotive Engineers v. Louisville & Nashville R. Co., 373 U.S. 33, 83 S.Ct. 1059, 10 L.Ed.2d 172 (1963). But even then, Congress in creating statutory rights affords opportunity for full exploration and determination of merits upon hearing, and final administrative action, although withholding judicial review. True, the Board is exclusively all powerful in its proper sphere. Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 264, 265, 60 S.Ct. 561, 84 L.Ed. 738 (1940). Likewise, the Board and its Agents act in the public interest. However, not exclusively so, or in utter disregard of private interests, be they individual or collective. Such Agency is not autonomously isolated from judicial review by the delegation of its powers and authority to its agents who may elect such informality of procedure as to thwart the statutory machinery. International Union United Auto, etc. Workers of America AFL-CIO v. Scofield, et al., 86 S.Ct. 373, decided December 7, 1965, since argument in this case, and while involving a formal Board order and the issue of intervention, nevertheless points the way to the resolution of the instant problem: “In prior decisions, this Court has observed that the Labor Act recognizes the existence of private rights within the statutory scheme, (citing auth.) These cases have, to be sure, emphasized the ‘public interest’ factor. To employ the rhetoric of ‘public interest,’ however, is not to imply that the public right excludes recognition of parochial private interests. A perusual of the statutory scheme and of the Board’s Rules and Regulations is illustrative. “The statutory machinery begins with the filing of an unfair labor practice charge by a private person, § 10(b); see also, 24 Fed.Reg. 9102 (1959), 29 CFR § 102.9 (1965). When the General Counsel issues a complaint and the proceeding reaches the adjudicative stage, the course the hearing will take is in the agency’s control, but the charging party is accorded formal recognition: he participates in the hearings as a ‘party’;" }, { "docid": "21494517", "title": "", "text": "employees o f the Ledger Company in the case before us the right to maintain their organization, the Newark Newspaper Guild, after the signing of their agreement with their employer. The Board found, upon sufficient evidence, that Miss Fahy was dischaiged because of her membership in and activity on behalf of the Guild, and that this discouraged membership in the Guild. We conclude that these findings establish the existence of an unfair labor practice on the part of the Ledger Company with which the Board was empowered to deal, and that its restraining order and direction to reinstate Miss Fahy with back pay were appropriate remedies. It is settled that it is a public right created by the act which was thus enforced. In Amalgamated Utility Workers v. Consolidated Edison Co, 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738, Mr. Chief Justice Hughes, speaking for the Supreme Court, made this quite clear. After reviewing the procedure prescribed by the act, he said (309 U.S. page 265, 60 S.Ct. page 563, 84 L.Ed. 738) : '“So far, it is apparent that Congress has ■entrusted to the Board exclusively the prosecution of the proceeding by its own complaint, the conduct of the hearing, the adjudication and the granting of appropriate relief. The Board as a public agency acting in the public interest, not any private person or group, not any employee or group of employees, is chosen as the instrument to assure protection from the described unfair conduct in order to remove obstructions to interstate commerce.” Referring to the report upon the bill of the Committee on Labor of the House of Representatives (H.R.Rep. No. 972, 74th Cong. 1st Sess. p. 21) the Chief Justice said (pages 267, 268 of 309 U.S., page 564 of 60 S.Ct, 84 L.Ed. 738): “After referring to the suitable adaptation of the Board’s orders to the needs of particular cases, and especially to the power to reinstate employees with or without back pay, the Committee continued: “ ‘No private right of action is contemplated. Essentially the unfair labor practices listed are matters of public concern," }, { "docid": "21494518", "title": "", "text": "'“So far, it is apparent that Congress has ■entrusted to the Board exclusively the prosecution of the proceeding by its own complaint, the conduct of the hearing, the adjudication and the granting of appropriate relief. The Board as a public agency acting in the public interest, not any private person or group, not any employee or group of employees, is chosen as the instrument to assure protection from the described unfair conduct in order to remove obstructions to interstate commerce.” Referring to the report upon the bill of the Committee on Labor of the House of Representatives (H.R.Rep. No. 972, 74th Cong. 1st Sess. p. 21) the Chief Justice said (pages 267, 268 of 309 U.S., page 564 of 60 S.Ct, 84 L.Ed. 738): “After referring to the suitable adaptation of the Board’s orders to the needs of particular cases, and especially to the power to reinstate employees with or without back pay, the Committee continued: “ ‘No private right of action is contemplated. Essentially the unfair labor practices listed are matters of public concern, by their nature and consequences, present or potential; the proceeding is in the name of the Board, upon the Board’s formal complaint. The form of injunctive and affirmative order is necessary to effectuate the purpose of the bill to remove obstructions to interstate commerce which are by the law declared to be detrimental to the public weal.’ ” Likewise in National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, page 362, 60 S.Ct. 569, page 576, 84 L.Ed. 799, Mr. Justice Stone said: “The proceeding authorized to be taken by the Board under the National Labor Relations Act is not for the adjudication of private rights. Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. [page] 261, 60 S.Ct. 561, 84 L.Ed. [738], H. Rept. No. 1147, 74th Cong., 1st Sess. Committee on Labor, p. 24; cf. Federal Trade Commission v. Klesner, 280 U.S. 19, 50 S.Ct. 1, 74 L.Ed. 138, 68 A.L.R. 838. It has few of the indicia of a private litigation and makes no requirement for the presence in it" }, { "docid": "23159367", "title": "", "text": "union’s counsel at the examination. We find nothing in Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738, or in National Licorice Co. v. National Labor Relations Board, 60 S.Ct. 569, 84 L.Ed. 799, in conflict with the view herein expressed. When the trial examiner indicated his intention to ask for instructions from Washington, the inference was, of course, inescapable that he desired instructions from the Board. His announced purpose was to save possible reversal upon questions which had never before been brought to his attention. We are unable to perceive in this announcement or in the practice, anything prejudicial to the petitioner, or in denial of due process. We come finally to the contention most strongly urged as ground for setting aside the Board’s order, that there was lack of substantial evidence to support findings of interference with or coercion of employees in the exercise of rights guaranteed in § 7 of the Act, 29 U.S.C.A. § 157, or to support findings that the petitioner dominated the Independent contrary to the provisions of § 8(2). It may be conceded at the outset, that many specific findings of fact to be. culled from the discursive decision of the Board, are unsupported otherwise than by surmise, suspicion, or guess, as condemned by us in National Labor Relations Board v. Empire Furniture Corp., 6 Cir., 107 F.2d 92. But with these eliminated there remain findings of coercion and domination based upon substantial evidence which support the decision and order of the Board. No purpose will be served by detailed review of the voluminous record made at the hearing. The investigation went far afield and much that is irrelevant and unimportant is incorporated, while unnecessary latitude was undoubtedly permitted the union attorney in his examination and cross-examination of witnesses. There remains, nevertheless, substantial evidence that Maride, an important supervisory employee, in charge of more than 20 line crews operating within the Jackson division comprising some 300 men, went far beyond the bounds of that strict neutrality asserted to be the petitioner’s labor policy, in coercing employees" }, { "docid": "10439212", "title": "", "text": "576, 84 L.Ed. 799, the court said: “The proceeding authorized to be taken by the Board under the National Labor Relations Act is not for the adjudication of private rights. Amalgamated Utility Workers v. Consolidated Edison Co. [ante], 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738, H.Rept. No. 1147, 74th Cong., 1st Sess., Committee on Labor, p. 24; cf. Federal Trade Commission v. Klesner, 280 U.S. 19, 50 S.Ct. 1, 74 L.Ed 138, 68 A.L.R. 838. It has few of the indicia of a private litigation and makes no requirement for the presence in it of any private party other than the employer charged with an unfair labor, practice. The Board acts in a public capacity to give effect to the declared public policy of the Act to eliminate and prevent obstructions to interstate commerce by encouraging collective bargaining * * In Amalgamated Workers v. Consolidated Edison Co., 309 U.S. 261, at page 265, 60 S.Ct. 561, at page 563, 84 L.Ed. 738, the court said: “The Board as a public agency acting in the public interest, not any private person or group, not any employee or group of employees, is chosen as the instrument to assure protection from the described unfair conduct in order to remove obstructions to interstate commerce.” In National Labor Relations Board v. Hearst Publications, supra, 322 U.S. Ill, page 123, 64 S.Ct. 851, 857, the court said: “The Wagner Act is federal legislation, administered by a national agency, intended to solve a national problem on a national scale.” In National Labor Relations Board v. Colten, 105 F.2d 179, 182, we said: “This contention, however, ignores the essential nature of regulatory statutes of the class here considered, and the scope and purpose of administrative orders made in exercise of powers conferred by such legislation. They are to implement a public social or economic policy not primarily concerned with private rights, and through remedies not only unknown to the common law but often in derogation of it.” This statement was in substance repeated in Consumers Power Co. v. National Labor Relations Board, 6 Cir., 113 F.2d" }, { "docid": "7359956", "title": "", "text": "“2. By causing the discharge of all employees covered by the agreement between Bellanca and the Unions. “3. By the coincidence of the interests of Piasecki and Bellanca under the agreement of October 24.” [Omissions are to record references.] While Piasecki did control the purchases at the Bellanca plant for about three weeks prior to November 23, and the incidents listed above occurred, a relationship of employer and employee was by no means created thereby. For the most part these activities were in preparation for the transfer on November 23. The employees remained on the payroll of Bellanca subject to the terms of the contract between it and the Union and Bellanca actually sent termination notices to them. The Board was within its province in according determination of the scope of the complaint to the General Counsel, Section 3(d), who did not contend that Piasecki was contractually obligated to bargain with the Union. Rather the General Counsel sought to ground Piasecki’s obligation to bargain on Section 8(a) (5) and it was within his domain to so formulate the complaint and its prosecution. Amalgamated Utility Workers v. Consolidated Edison Co., 1940, 309 U.S. 261, 264-265, 60 S.Ct. 561, 84 L.Ed. 738. It is true as was said by this court in Marine Engineers’ Ben. Ass’n v. N. L. R. B., 3 Cir., 1953, 202 F.2d 546, 549: “Our best judgment is that the charging party after complaint is issued, does have some standing. The Board may refuse to do anything about his complaint, as already indicated. But once it does, and once it goes to the extent of filing a com plaint, then we think that he is entitled to have a chance to be heard as the Administrative Procedure Act requires. He has a right to object if after hearing he does not like the result. But he certainly has nothing on which to base his objections unless there is a hearing and a record is made so that the court has something to go on.” In this case all of these rights were vouchsafed to the Union. It examined" }, { "docid": "10736321", "title": "", "text": "of intervention by virtue of § 102.8 of the Board’s Rules and Regulations, supra, n. 3, and an aggrieved party entitled to seek review from adverse Board determinations under Section 10(f) of the Act, the charging party is neither expressly granted the right to a hearing in an unfair labor practice case under Section 10(b) of the Act nor is an “interested” party within the meaning of Section 5 of the Administrative Procedure Act, supra, so as to be entitled to a hearing as a matter of right under that Act. This view is bottomed on the proposition that “where reliance is placed on a legislatively created interest, a person can make the requisite showing [of interest] (as distinguished from the lesser one required to be a ‘person aggrieved’) only if the statute can fairly be construed as vesting him with a new private right,” 339 F.2d at 800, and the holding of Amalgamated Utility Woorkers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738 (1940), that the National Labor Relations Act did not provide a private administrative remedy and thus provided no private rights to victims of unfair labor practices. In the most recent case dealing with the question of the charging party’s right to an evidentiary hearing on his objections to a proposed settlement agreement, Leeds & Northrup Company v. N. L. R. B., 3 Cir., 1966, 357 F.2d 527, the Third Circuit adhered to the approach it had taken in Marine Engineers, supra, in 1953. In doing so, the court said: True, the Board is exclusively all powerful in its proper sphere. (Citing Amalgamated Utility Workers v. Consolidated Edison Co., supra.) Likewise, the Board and its Agents act in the public interest. However, not exclusively so, or in utter disregard of private interests, be they individual or collective. [Citing International Union, etc., Local 283 v. Scofield, 382 U.S. 205, 86 S.Ct. 373, 15 L.Ed.2d 272 (1965)]. At 532. Leeds & Northrup also seemingly expanded the holding in Marine Engineers, supra, so as to prevent the settlement of any unfair labor practice case without" }, { "docid": "8422333", "title": "", "text": "634. The ALJ explained that this position is premised on Section 10(a) of the Act which sets forth that the Board’s power to prevent unfair labor practices “shall not be affected by any other means of adjustment or prevention that had, [sic ] has been or may be established by agreement, law, or otherwise,” [29 U.S.C. § 160(a),] as well as the long-recognized principle that “[’]Congress has entrusted to the Board exclusively the prosecution of the proceeding by its own complaint, the conduct of the hearing, the adjudication and the granting of appropriate relief. The Board, as a public agency acting in the public interest, not any person or group, not any employee or group of employees, is chosen as the instrument to assure protection from the described unfair conduct in order to remove obstructions to interstate commerce!’]” Field Bridge[ Associates, 306 N.L.R.B. 322 (1992), enforced sub nom. Local 32B-32J Service Employees International Union v. NLRB, 982 F.2d 845 (2d Cir.), cert. denied, 509 U.S. 904, 113 S.Ct. 2995, 125 L.Ed.2d 689 (1993) ], citing Amalgamated Utility Workers v. Consolidated Edison Co., ... 309 U.S. [261, 265, 60 S.Ct. 561, 84 L.Ed. 738] (1940). Thalbo III, 323 N.L.R.B. at 634. Turning to the evidence as to DiMilta’s job-search efforts, the ALJ found that it was “reasonable that [DiMilta] may have been so upset at having to testify about the serious and humiliating incidents of sexual harassment, that she may have not been fully concentrating on her answers.” Id. at 636 (footnote omitted). The ALJ found that DiMilta had not in fact left the job market, as he credited her testimony with regard to her efforts to find new work after being laid off at Stewart, noting that that testimony was supported by her extensive records. He concluded that the Company had not carried its burden of showing that DiMilta failed to make a “reasonable good-faith effort to find jobs.” Id. at 635-36. For the reasons discussed in Part II.C. below, the ALJ also rejected the Company’s contentions that the backpay period ended prior to July 1995. The total back-pay award," }, { "docid": "21494516", "title": "", "text": "the purpose of collective bargaining. This right must necessarily continue so long as the prospect of future bargaining remains. It will thus be seen that the act guarantees to employees the continuous right to maintain labor organizations for the purpose of collective bargaining, after the signing of a particular collective bargaining agreement as well as before. This conclusion is in harmony with the declaration of policy contained in the act. It is stated in section 1, 29 U.S.C.A. § 151, that the denial by employers of the right of employees to organize and the refusal of employers to accept the procedure of collective bargaining cause industrial strife with resulting obstruction to interstate commerce; that protection of the right of employees to organize and to bargain collectively safeguards commerce and that the policy of the a.ct is to encourage the practice and procedure of collective bargaining and to protect the exercise by workers of full freedom of association, self-organization and designation of representatives of their own choosing. Accordingly Section 7 of the act conferred upon the employees o f the Ledger Company in the case before us the right to maintain their organization, the Newark Newspaper Guild, after the signing of their agreement with their employer. The Board found, upon sufficient evidence, that Miss Fahy was dischaiged because of her membership in and activity on behalf of the Guild, and that this discouraged membership in the Guild. We conclude that these findings establish the existence of an unfair labor practice on the part of the Ledger Company with which the Board was empowered to deal, and that its restraining order and direction to reinstate Miss Fahy with back pay were appropriate remedies. It is settled that it is a public right created by the act which was thus enforced. In Amalgamated Utility Workers v. Consolidated Edison Co, 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738, Mr. Chief Justice Hughes, speaking for the Supreme Court, made this quite clear. After reviewing the procedure prescribed by the act, he said (309 U.S. page 265, 60 S.Ct. page 563, 84 L.Ed. 738) :" }, { "docid": "13548387", "title": "", "text": "whether sufficient due process was afforded Gibson when he was deprived of such property right. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), is the leading case discussing the process due a terminated state employee who has a property right in continued employment. An essential element of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case. We have described the ■ root requirement of the Due Process Clause as being that an individual be given an opportunity, for a hearing before he is deprived of any significant, property interest. This principle requires some kind of a hearing prior to the discharge of an employee who has a constitutionally protected property interest in his employment. Id. at 542, 105 S.Ct. at 1493 (quotations and citations omitted). - Gibson had a full evidentiary hearing before the Board of Rights, but this came after he had been suspended without pay. Under Loudermill, in addition to the postdeprivation Board of Rights hearing, Gibson was entitled to “some kind of a hearing” before his suspension without pay began. However, “the pretermination ‘hearing,’ though necessary, need not be elaborate.” Id. at 545, 105 S.Ct. at 1495. “The tenured public employee is entitled to 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. To require more than this prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee.” Id. at 546, 105 S.Ct. at 1495 (citations omitted). Gibson’s claim that he was denied these procedures before he was suspended is simply redundant. In our previous decision, we stated: There can be little doubt that Gibson was given notice of the charges against him before he was suspended. He was informed of one set of those charges on June'25, 1982 and discussed those with his commanding officer, Captain Dyment. He was informed of the second set of charges" }, { "docid": "12032929", "title": "", "text": "Act. We do not agree with this contention. The right of employees to form labor organizations and to bargain collectively through representatives of their own choosing with employers has long been recognized. N. L. R. B. v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 33, 34, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. This right is protected by the Constitution against governmental infringement, as are the fundamental rights of other individuals But prior to the National Labor Relations Act no federal law prevented employers from discharging employees for exercising these rights or from refusing to recognize or bargain with labor organizations. The National Labor Relations Act created rights against employers which did not exist before. N. L. R. B. v. Jones & Laughlin Steel Corp., supra. Such rights, however, were not private rights vested in the employees but were public rights protected by the power placed by the Act in the National Labor Relations Board. Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738; National Licorice Co. v. N. L. R. B., 309 U.S. 350, 362, 363, 60 S.Ct. 569, 84 L.Ed. 799; Phelps Dodge Corporation v. N. L. R. B., 313 U.S. 177, 192, 193, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217. There is nothing in the amended Act which restricts freedom of speech on the part of supervisory employees. Section 14(a) of the amended Act specifically reserves to them the right to join a labor organization. The rights guaranteed by the First Amendment are not interfered with. The amended Act merely changes the statutory method of enforcing those rights. What Congress gave by the original Act in the way of enforcement provisions was pursuant to the policy determined by Congress at that time, which it was privileged to change by a later exercise of such power when and if it seemed advisable to it that such policy be changed. The argument to the contrary would deny to Congress the right to repeal the Act in its entirety after it was once placed in the statutes in" }, { "docid": "7359957", "title": "", "text": "so formulate the complaint and its prosecution. Amalgamated Utility Workers v. Consolidated Edison Co., 1940, 309 U.S. 261, 264-265, 60 S.Ct. 561, 84 L.Ed. 738. It is true as was said by this court in Marine Engineers’ Ben. Ass’n v. N. L. R. B., 3 Cir., 1953, 202 F.2d 546, 549: “Our best judgment is that the charging party after complaint is issued, does have some standing. The Board may refuse to do anything about his complaint, as already indicated. But once it does, and once it goes to the extent of filing a com plaint, then we think that he is entitled to have a chance to be heard as the Administrative Procedure Act requires. He has a right to object if after hearing he does not like the result. But he certainly has nothing on which to base his objections unless there is a hearing and a record is made so that the court has something to go on.” In this case all of these rights were vouchsafed to the Union. It examined and cross examined, argued and was granted full expression before the Board and has been heard on this appeal. That its arguments are not always successful does not connote a deprivation of its opportunity to make them. The Union urged that aside from the asserted contractual obligation Piasecki has violated Section 8(a) (5) because as successor to Bellanca it was required to bargain with it as the representative of the majority of the workers regardless of whether any of them had been hired by Piasecki. However, the Board concluded that Piasecki was not a successor to Bellanca and that its employees never became the employees of Piasecki. It recognized the distinction in Section 8(a) (5) wherein an employer is required to bargain in good faith with the representatives of “his employees” and held that the Bellanca workers were not “his [Piasecki’s] employees” within the meaning of that section. The Union contends that Section 8(d) requires the employer to bargain with the “representative of the employees”, not “his employees” as in Section 8(a) (5); and that" }, { "docid": "10736324", "title": "", "text": "* * * were such matters of fact which warranted a full hearing. * * * Anything less must in effect be arbitrary and capricious. 357 F.2d at 535-536. As these cases indicate, the resolution of the issue of whether the charging party is entitled to an evidentiary hearing on his objections to a proposed settlement agreement is dependent on the relative positions of the parties in an unfair labor practice proceeding, as provided for by Congress in the National Labor Relations Act, supra. In Amalgamated Utility Workers v. Consolidated Edison Co., supra, the Supreme Court held that the charging party had no right to institute contempt proceedings in the Court of Appeals to compel compliance with a decree enforcing a Board order on the ground that the Board has been given exclusive enforcement rights under the Act. It said: * * * [I]t is apparent that Congress has entrusted to the Board exclusively the prosecution of the proceeding by its own complaint, the conduct of the hearing, the adjudication and the granting of appropriate relief. The Board as a public agency acting in the public interest, not any private person or group, not any employee or group of employees, is chosen as the instrument to assure protection from the described unfair conduct in order to remove obstructions to interstate commerce. ****** Again, the Act gives no authority for any proceeding by a private person or group, or by any employee or group of employees, to secure enforcement of the Board’s order. The vindication of the desired freedom of employees is thus confided by the Act, by reason of the recognized public interest, to the public agency the Act creates. 309 U.S. at 265, 266, 60 S.Ct. at 563, 564. The Court went on to take the position that the National Labor Relations Act does not create “an administrative remedy for private wrongs,” Id. 268, 60 S.Ct. 565, and that the right afforded a private person under Section 10(f) of the Act, 29 U.S.C.A. § 160(f), “is an opportunity afforded to contest a final order of the Board not to" }, { "docid": "11022463", "title": "", "text": "labor practice alleged, namely the dischage of Babbitt for his union activities, could not affect interstate commerce and therefore that the Board had no jurisdiction over the proceeding'. According to respondent’s theory the collective bargaining agreement provides a peaceable means of settling labor disputes; the tranquil disposition of such disputes negatives the possibility of burdening or obstructing interstate commerce; therefore there exists no unfair labor practice over which the Board has jurisdiction under the Act. The Board found the contention without merit. The basic purpose of the Act is to free interstate commerce of obstructions resulting from industrial unrest by protecting the rights of self-organization and collective bargaining, 29 U.S.C.A. § 151; National Labor Relations Board v. Fansteel Metallurgical Corp., 1939, 306 U.S. 240, 247, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599. By 29 U.S.C.A. § 160(a) the Act authorizes the Board “to prevent any person from engaging in any unfair labor practice (listed in section 158) affecting commerce.” Within its grant of power the Board acts in the public interest to enforce a public right. Amalgamated Utility Workers v. Consolidated Edison Co., 1940, 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738; National Licorice Co. v. National Labor Relations Board, 1940, 309 U.S. 350, 366, 60 S.Ct. 569, 84 L.Ed. 799. Without restriction the Board may ex.-ercise jurisdiction over any situation involving an unfair labor practice affect ing commerce under the terms of § 160(a) Whether or not a collective bargainin'-, agreement has been reached as betwe:n an employer and the representative of a group of employees is immaterial, for collective bargaining agreements do not neces - sarily accomplish peace; they are not 'i guaranty that no further unfair labor practices will occur or that such practices wi'd not burden commerce. In point of possibil: - ty it may be said that arbitration decisions themselves may burden commerce. The instant case is proof enough that even the establishment of a grievance and arbitration procedure in a collective bargaining agreement may not eradicate serious disputes in an organization engaged in interstate commerce. The Act itself contemplates a continuing" }, { "docid": "10736327", "title": "", "text": "that our holding in Amalgamated Util. Workers, 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738, casts doubt on these notions. The Court there held that private parties who initiated unfair labor practice charges may not prosecute a contempt action against the charged party in the court which enforces the Labor Board order. (Footnote omitted.) * * * We find nothing inconsistent in denying the right of a private party to institute a contempt proceeding — where the Board’s expertness in achieving compliance with orders is challenged —and, on the other hand, in permitting intervention in a proceeding already in the court for decision. * * # 382 U.S. at 220, 221, 86 S.Ct. at 383. From these cases it is clear that the rights of the various persons involved in an unfair labor practice proceeding before the Board are to be determined with reference to the overall legislative scheme imposed by Congress in the Act. International Union, etc., Local 283 v. Scofield, supra, at 276, 86 S.Ct. 373. And that the Labor Board is constituted to adjudicate the matters before it in a manner different from most other administrative agencies. Amalgamated Utility Workers v. Consolidated Edison Co., supra, 309 U.S. at 268, 269, 60 S.Ct. 561. Instead of adjudicating disputes between private persons who invoke its jurisdiction and represent their own interests before it, as do most of our courts and administrative agencies, the National Labor Relations Board adjudicates disputes between its Regional Directors, as represented by the General Counsel, and the person charged with an unfair labor practice under the Act. The person who has been wronged merely initiates the proceeding by bringing a charge, he does not prosecute the violator before the Board. Under this scheme, the General Counsel represents the public interest in preventing the interference to interstate commerce caused by unfair labor practices, and, at the same time, the private interest of the charging party to be free from the harm to his interests caused by unfair labor practices. The role of the charging party is thus rendered ambiguous. The dispute, at least in the" }, { "docid": "13727041", "title": "", "text": "energy, is immaterial, because the fact is that they have not done so. See, also, Edison Co. v. Labor Board, 305 U. S. 197, 59 S.Ct. 206, 83 L.Ed. 126. The Unfair Labor Practice. The statements made by what the Board calls “supervisory” employees, were made by three different classes, i. e., job foremen, general foremen, and division superintendents. Respondent’s first contention is that it is not bound by the acts of such employees because there was nothing to show it had authorized any of such individuals to make the statements. It appeared that of the three classes of employees above mentioned, only the division superintendent has the right to hire and fire employees. The right is not unlimited however. If the employee discharged was guilty of intoxication on the job, gross insubordination or dishonesty, the division superintendent would have the right to make the discharge. In other cases, where the employee had more than five years of service with respondent, the discharge would have to be made by respondent’s personnel department. The job foreman may administer some reprimands, report on the performance of men working under him, and make recommendations regarding discharge of such men, which recommendations are given consideration by respondent. The general foremen are directly in charge of the job foremen and may discipline the employees. The question involved here has been discussed by the Supreme Court. In International Ass’n of Machinists etc. v. Nat’l Labor Relations Board, 311 U.S. 72, 61 S.Ct. 83, 88, 85 L.Ed. —, November 12, 1940, the court said: “The employer, however, may be held to have assisted the formation of a union even though the acts of the so-called agents were not expressly authorized or might not be attributable to him on strict application of the rules of respondeat superior. We are dealing here not with private rights (Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738) nor with technical concepts pertinent to an employer’s legal responsibility to third persons for acts of his servants, but with a clear legislative policy to free the" }, { "docid": "13979710", "title": "", "text": "order previously issued against the debtor employer. The Supreme Court concluded that the National Labor Relations Board was a creditor within the meaning of the Bankruptcy Act and allowed the claim. In reaching this conclusion, the Supreme Court stated: The Board is the public agent chosen by Congress to enforce the National Labor Relations Act. Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 269, 84 L.Ed. 738, 743, 60 S.Ct. 561. A back pay order is a reparation order designed to vindicate the public policy of the statute by making the employees whole for losses suffered on account of an unfair labor practice. Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 197, 85 L.Ed. 1271, 1284, 61 S.Ct. 845, 133 ALR 1217. Congress has made the Board the only party entitled to enforce the Act. A back pay order is a command to pay an amount owed the Board as agent for the injured employees. The Board is therefore a claimant in the amount of the back pay. Id. at 27, 73 S.Ct. at 82. This Court agrees with the FTC. Under Nathanson, the FTC is a creditor in its own right and its claim should not have been disallowed. The decisions in In re Johns-Manville Corp., 53 B.R. 346 (Bankr.Ct.S.D.N.Y.1985); Matter of Baldwin-United, Corp., 52 B.R. 146 (Bankr.Ct.S.D. Ohio 1985); and Matter of GAC Corp., 681 F.2d 1295 (11th Cir.1982), cited by the Lenders, are not persuasive authority to the contrary. Those cases involved individual creditors who attempted to file class proofs of private claims. A claim filed in the public interest by a governmental agency based on statutory obligations was not at issue in those cases. Clearly, the “United States is a creditor not only with respect to [tax claims] but also with respect to statutory obligations enforceable by a federal administrative agency in the public interest for the benefit of private parties.” 2 L.P. KING, COLLIER ON BANKRUPTCY, 11101.09 (15th ed. 1985). IV. DUPLICATIVE CLAIMS, UNDUE BURDEN & ESTIMATION Another reason stated by the bankruptcy court in its disallowance of the FTC’s" }, { "docid": "13613774", "title": "", "text": "561 F.2d 1209 (5th Cir. 1977). This same reasoning applies to a racial discrimination claim brought under § 1983. Cf. Whatley, supra at 878 (because the “essential nature” of the claim determines the applicable limitations period, the same period applies to substantially identical racial discrimination claims whether brought under § 1981 or § 1983 — applying Georgia law) and Braden, 636 F.2d at 92 (applying Texas law). Therefore, the court was correct in holding that Jones’ claim of racial discrimination under §§ 1981 and 1983 was time-barred. Jones’ § 1983 claim alleging due process violations should not have been dismissed as time-barred, however. In Pegues v. Morehouse Parish School Board, 632 F.2d 1279 (5th Cir. 1980), cert, denied, 451 U.S. 987, 101 S.Ct. 2322, 68 L.Ed.2d 844 (1981), we held that La.Civ.Code art. 3536’s one year limitations period applied to a claim by a black coach who alleged that he had been demoted on the basis of his race. We concluded, however, that if he had been tenured and had sued for the violation of his rights as a tenured teacher, the three year limitations period of La.Civ.Code art. 3538 would have been applicable. Jones’ right to due process arises out of his status as a tenured teacher, and therefore art. 3538 controls. Because Jones filed this suit less than three years after he was terminated, his due process claim is not time-barred. II. Due Process Jones argues that his right to due process, which is secured by the Fourteenth Amendment to the United States Constitution, was violated because the Board did not give him notice and an opportunity to be heard before he was terminated. The Board contends that Jones “abandoned” his teaching position and therefore was not entitled to notice and hearing. In the alternative, the Board argues that it fulfilled its obligations under the due process clause. A public employee may claim procedural due process rights upon termination if he has a property interest in continued employment. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Property interests are not created by the" }, { "docid": "11022464", "title": "", "text": "a public right. Amalgamated Utility Workers v. Consolidated Edison Co., 1940, 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738; National Licorice Co. v. National Labor Relations Board, 1940, 309 U.S. 350, 366, 60 S.Ct. 569, 84 L.Ed. 799. Without restriction the Board may ex.-ercise jurisdiction over any situation involving an unfair labor practice affect ing commerce under the terms of § 160(a) Whether or not a collective bargainin'-, agreement has been reached as betwe:n an employer and the representative of a group of employees is immaterial, for collective bargaining agreements do not neces - sarily accomplish peace; they are not 'i guaranty that no further unfair labor practices will occur or that such practices wi'd not burden commerce. In point of possibil: - ty it may be said that arbitration decisions themselves may burden commerce. The instant case is proof enough that even the establishment of a grievance and arbitration procedure in a collective bargaining agreement may not eradicate serious disputes in an organization engaged in interstate commerce. The Act itself contemplates a continuing jurisdiction by the Board over employer-employee relationships, for § 160 (a) includes a provision that the Board’s power over unfair labor practices “shall be exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise.” Clearly, agreements between private parties cannot restrict the jurisdiction of the Board. National Labor Relations Board v. Newark Morning Ledger Co., 3 Cir., 1941, 120 F.2d 262, 267-268, 137 A.L.R. 849; National Labor Relations Board v. Prettyman, 6 Cir., 1941, 117 F.2d 786, 792; National Labor Relations Board v. General Motors Corp., 7 Cir., 1940, 116 F.2d 306, 312. Therefore, we believe the Board may exercise jurisdiction in any case of an unfair labor practice when in its discretion its interference is necessary to protect the public rights defined in the Act. The Board, then, had discretionary power to exercise its jurisdiction in the instant case. Respondent argues that it is the policy of the National War Labor Board (NWLB) in the case of" }, { "docid": "23159366", "title": "", "text": "examiner to request a ruling upon debatable points from “Washington.” Section 10(b) of the Act provides that persons other than the respondent may be allowed to intervene in the proceedings and to present testimony in the discretion of the member, agent or agency conducting the hearing. The Board’s rules and regulations (Article II, § 19), provide for formal intervention, but Article II, § 25, provides that any party shall have the right to appear at such hearing iri person, by counsel, or otherwise, to call, examine and cross-examine witnesses, and to introduce into the record documentary or other evidence. The report of the examiner is merely a recommendation subject to review by the Board, and it is the Board’s findings and order that are here in issue, and not the examiner’s recommendation. If the findings are supported by substantial evidence and sustain the order it becomes our duty to direct enforcement. It is not contended that the Board, in making its findings, was in any way influenced, coerced or intimidated by improper conduct of the union’s counsel at the examination. We find nothing in Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738, or in National Licorice Co. v. National Labor Relations Board, 60 S.Ct. 569, 84 L.Ed. 799, in conflict with the view herein expressed. When the trial examiner indicated his intention to ask for instructions from Washington, the inference was, of course, inescapable that he desired instructions from the Board. His announced purpose was to save possible reversal upon questions which had never before been brought to his attention. We are unable to perceive in this announcement or in the practice, anything prejudicial to the petitioner, or in denial of due process. We come finally to the contention most strongly urged as ground for setting aside the Board’s order, that there was lack of substantial evidence to support findings of interference with or coercion of employees in the exercise of rights guaranteed in § 7 of the Act, 29 U.S.C.A. § 157, or to support findings that the petitioner dominated the" } ]

[ { "docid": "7820504", "title": "", "text": "involving the exercise of their constitutionally protected rights of free speech and association.” Following a jury trial, Johnson and the Transit Authority were found liable. The district court, however, granted the Transit Authority’s motion for a judgment as a matter of law, concluding that “there was nothing in the evidence of this case that in the Court’s view would warrant a reasonable juror or any reasonable juror concluding that there was an official policy to retaliate against members of New Directions.” Both sides now appeal. DISCUSSION 1. Johnson’s Liability The Supreme Court has stated an “unambiguous preference” that we consider the merits first in qualified immunity cases, see Medeiros v. O’Connell, 150 F.3d 164, 169 (2d Cir.1998) (relying on County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1714 n. 5, 140 L.Ed.2d 1043 (1998)). Consistent with that view, we deem it advisable to begin by analyzing whether Clue and Little had a constitutional right to engage in them New Directions advocacy free from retaliation by Johnson. There is no doubt that retaliation against public employees solely for their union activities violates the First Amendment. See, e.g., Boals v. Gray, 775 F.2d 686, 693 (6th Cir.1985). Johnson’s position, however, is that her alleged retaliation against Clue and Little does not support a First Amendment claim because their activities were on behalf of a minority union faction rather than on behalf of the union itself. We disagree and conclude that Clue and Little had a constitutional right to be free from retaliation for their New Directions activities. A. Public Concern We assume, for purposes of this opinion, that to obtain protection under the First Amendment Clue and Little’s activities must have involved a “public concern.” See Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Once that threshold requirement is met, a public employee’s speech rights must be protected unless, under all the circumstances, the employee’s interest in free comment is outweighed by the State’s interest in the efficiency of its public services. See Pickering v. Board of Educ., 391 U.S. 563, 572-73, 88" } ]

[ { "docid": "11222054", "title": "", "text": "Id. We reserved judgment on whether the public concern requirement applies to association claims when those claims do not allege retaliation for the member’s speech. Id. Our sister Circuits are split on whether an employee must demonstrate that the protected activity relates to a matter of public concern to trigger First Amendment associational rights and consequent protections against retaliation. See Cobb v. Pozzi, 363 F.3d 89, 107 (2d Cir. 2004) (“In sum, Connick’s reliance on freedom of association cases and the Supreme Court’s warning against the stratification of First Amendment freedoms convince us that a public employee bringing a freedom of association claim must demonstrate that the association or associational activity at issue touches on a matter of public concern.”); Klug v. Chi. Sch. Reform Bd. of Trs., 197 F.3d 853, 857 (7th Cir. 1999) (“[A] public employee is protected from adverse employment consequences based on the exercise of the right to freedom ,of association only when the associational conduct relates to a matter of public concern.”); Edwards v. City of Goldsboro, 178 F.3d 231, 249-50 (4th Cir. 1999) (applying public concern requirement after concluding that “the limitations on a public employee’s right to associate are ‘closely analogous’ to the limitations on his right to speak”); Boals v. Gray, 775 F.2d 686, 692 (6th Cir. 1985) (“We perceive no logical reason for differentiating between speech and association in applying Connick to first amendment claims, and hold that it is so applicable.”); Martin v. City of Del. City, 179 F.3d 882, 888 (10th Cir. 1999) (“This court has ap plied the[] principles from Connick v. Myers ... in deciding First Amendment claims [for] violations of [the public employee’s] right to freedom of speech, freedom of association, and to petition for redress of grievances.”); but see Boddie v. City of Columbus, 989 F.2d 745, 747 (5th Cir. 1993) (holding that a plaintiff asserting a First Amendment freedom-of-association claim need not show that his or her purely associational activity touched upon a matter of public concern); Hatcher v. Bd. of Pub. Educ. & Orphanage, 809 F.2d 1546, 1558 (11th Cir. 1987) (holding that" }, { "docid": "22590017", "title": "", "text": "accepted the plaintiffs’ proposed charge and instructed the jury that it was to accept as binding numerous findings made by the arbitrator. It also instructed the jury that as a matter of law ..., the activities COBA engaged in, which include collective bargaining or contract negotiations, ... filing grievances on behalf of members, ... seeking redress of grievances by way of arbitration and in the courts, and complaining to the public about the operation of the [DOC] are all protected by the First Amendment, and persons who belong to the union are protected from any adverse job action because of or motivated by such conduct. After the district court finished instructing the jury, defense counsel took an additional exception to the First Amendment freedom of association instruction. Specifically, counsel objected to the portion of the charge referencing COBA’s public criticism about the operation of the DOC and argued that there was no evidence in the trial record to support that assertion. Agreeing with the defendants’ contention on this point, the district court immediately cured the instruction. Following several hours of deliberation, the jury returned a verdict in favor of the plaintiffs. According to the verdict form, the jury concluded that each of the defendants had violated the First and Fourteenth Amendment rights of Officers Cobb and Rouse. In addition, the jury found that the defendants had not proved by a preponderance of the evidence that they would have disciplined Officers Cobb and Rouse even in absence of their COBA membership. The jury then awarded the plaintiffs $35,000 each in damages. On December 11, 2001, the defendants moved for judgment as a matter of law, and, in the alternative, for a new trial. They argued, among other things, that the plaintiffs’ freedom of association claim failed as a matter of law and that they had articulated a rational basis for their decision to treat the plaintiffs differently from similarly situated officers, like Officers Vanderwerff and Conway, who also had refused to take their overtime shifts. In their motion for a new trial, the defendants maintained that they suffered material prejudice as" }, { "docid": "21465375", "title": "", "text": "his political activities; and (3) by giving non-party deposition testimony in a civil case. See Donovan Aff. at ¶ 8. The defendants do not dispute that the plaintiffs political activities, undertaken both as a private citizen and in connection with his union membership, were protected. See Mandell, 316 F.3d at 383 (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)) (“speech on ‘any matter of political, social or other concern to the community’ is protected by the First Amendment”); see also Gronowski v. Spencer, 424 F.3d 285, 292 (2d Cir.2005). Moreover, the plaintiff has characterized his “union activities” and his “political activities” as one and the same. See Pis. Mem. in Opp at 6-7. He states, in this regard, that his participation in the political activities at issue are “part and parcel of his union advocacy of [the non-incumbent candidate].” Id. In addition, the court also finds that the plaintiffs union membership, in and of itself, is enough to satisfy the public concern element. Although the Second Circuit has declined to rule on the issue of whether, in the absence of union activity, “pure union membership” is enough to satisfy the public concern requirement, see Cobb v. Pozzy 363 F.3d 89, 107 (2d Cir. 2004), several courts have determined that union membership in and of itself satisfies the public concern requirement and the court is persuaded by those decisions. See Scott v. Goodman, 961 F.Supp. 424, 435 (E.D.N.Y.1997), affd 191 F.3d 82 (2d Cir. 1999); Maglietti v. Nicholson, 517 F. Supp 2d 624, 635 (D.Conn.2007). The court now turns to crux of the dispute, that is, whether or not the defendants retaliated against him for exercising his free speech. As noted earlier, to prevail on a claim of first amendment retaliation, a plaintiff must also establish a causal connection between his speech and the adverse action, “so that it can be said that his speech was a motivating factor in the determination.” Morris v. Lindau, 196 F.3d at 110. A plaintiff can establish the causal connection between the protected activity and the adverse action" }, { "docid": "22590040", "title": "", "text": "matters only of personal interest, ... a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” (emphasis added)). Similarly, our holding today requiring Officers Cobb and Rouse to show that them assoeiational activity touches on matters of public concern does not mean that assoeiational activity that touches only on matters of private concern is “totally beyond” the First Amendment’s protection. Rather, it simply recognizes, as Connick did in the context of free speech, that some assoeiational activity— that activity touching only on matters of private concern — cannot support a claim for First Amendment retaliation in the employment context. In sum, Connick’s reliance on freedom of association cases and the Supreme Court’s warning against the stratification of First Amendment freedoms convince us that a public employee bringing a freedom of association claim must demonstrate that the association or assoeiational activity at issue touches on a matter of public concern. 2. Assuming That Union Membership Touches on a Matter of Public Concern, Was the Evidence Sufficient to Prove That Plaintiffs’ Membership in COBA Was a Motivating Factor for the Defendants to Discipline Them? On appeal, the plaintiffs contend that their “membership in COBA is, in and of itself, protected by the First Amendment.” We have not had occasion to decide whether union membership alone touches on a matter of public concern and therefore provides a proper basis for a First Amendment retaliation claim. In Clue v. Johnson, 179 F.3d 57 (2d Cir.1999), we held that union activities such as handing out leaflets and distributing a union newsletter satisfied Connick’s public concern requirement. See id. at 59, 61. Here, however, the plaintiffs distance themselves from any union activity. Instead, their brief repeatedly describes their retaliation claim as one of “pure free association” premised solely on the fact of their membership in COBA. We need not decide today whether such membership, by itself, touches on a matter of public concern. Assuming, without deciding, that it does, we conclude that there was not enough" }, { "docid": "22590021", "title": "", "text": "for judgment as a matter of law unless, viewed in the light most favorable to the nonmoving party, “the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached.” Id. (quoting Cruz v. Local Union No. Three of the Int’l Bhd. of Elec. Workers, 34 F.3d 1148, 1154-55 (2d Cir.1994)). B. First Amendment Retaliation The plaintiffs allege in their complaint that the defendants violated their First Amendment right to freedom of association by subjecting them to disciplinary charges in retaliation for their membership in COBA. The defendants respond that to be protected under the First Amendment, the plaintiffs must show that their associational activity touches on a matter of public concern. The defendants maintain that because the plaintiffs have not made this showing, their freedom of association claim fails. Public employees do not surrender their First Amendment rights to comment on matters of public interest by virtue of their acceptance of government employment. See Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Nevertheless, when playing the role of employer, the state possesses “greater leeway to control employees’ speech that threatens to undermine its ability to perform its legitimate functions.” Lewis v. Cowen, 165 F.3d 154, 161 (2d Cir.1999). Courts determine the extent to which the government may permissibly regulate the speech of its employees by balancing the interest of the employee, “as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731. In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the Supreme Court observed that where the employee speech at issue does not touch on a matter of public concern, courts need not scrutinize the reason for the adverse employment action because “[w]hen employee expression cannot be fairly considered as relating to" }, { "docid": "13947762", "title": "", "text": "as a matter of logic or precedent, inherently a matter of public concern. In Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979) (per curiam), the Court held that the first amendment protects the right of public employees to form unions. See also Professional Association of College Educators (PACE) v. El Paso County Community College District, 730 F.2d 258, 262-63 (5th Cir.1984); Gavrilles, 579 F.Supp. at 304. In Connick, however, the Court did not hold that speech by a public employee not on a matter of public interest was “totally beyond the protection of the First Amendment,” but merely that such speech did not give rise to a cause of action in federal court “to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” 461 U.S. at 147, 103 S.Ct. at 1690. Thus, applying Connick to union speech and activity is not inconsistent with the well-established principle that such speech and activity is protected by the first amendment. In fact, Connick itself was just such a case. There the plaintiff was distributing a questionnaire to other employees relating primarily to the terms and conditions of their employment. The Court, however, characterized the questionnaire as reflective of “one employee’s dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celebre,” 461 U.S. at 148, 103 S.Ct. at 1691, and concluded, with one exception, that it did not touch upon a matter of public concern. Cf. American Postal Workers Union v. United States Postal Service, 598 F.Supp. 564, 568-69 (D.D.C.1984) (postal worker’s column in union newsletter, discussing strategies for increasing union membership and right to work movement, distinguished from speech at issue in Connick). We conclude that an employee’s speech, activity or association, merely because it is union-related, does not touch on a matter of public concern as a matter of law. B. Having concluded that Connick is applicable to plaintiff’s claim, we must consider whether the basis for his suspension was speech or association touching on a matter" }, { "docid": "11222053", "title": "", "text": "of a public employee to organize an association for the purposes of collective bargaining. We later clarified that Labor held “only that efforts of public employees to associate together for the purpose of collective bargaining involve associational interests which the First Amendment protects from hostile state action.” Sanguigni v. Pittsburgh Bd. of Pub. Educ., 968 F.2d 393, 400 (3d Cir. 1992) (internal quotations omitted). Neither Smith nor Labor establish whether, and to what extent, the First Amendment’s right to expressive association provides a cause of action for a union member in an employment dispute who claims retaliation based on his passive membership in a union whose representatives oppose internal policies. In Sanguigni, we emphasized Labor “d[id] not make clear” whether Connick’s public concern requirement for public employee speech applies in associational cases. Id. We recognized that, in the years since we decided Labor, our Court had not' settled the question of whether a -public employee must demonstrate that the union representative’s advocacy raises a matter of public concern in bringing a claim for expressive association. Id. We reserved judgment on whether the public concern requirement applies to association claims when those claims do not allege retaliation for the member’s speech. Id. Our sister Circuits are split on whether an employee must demonstrate that the protected activity relates to a matter of public concern to trigger First Amendment associational rights and consequent protections against retaliation. See Cobb v. Pozzi, 363 F.3d 89, 107 (2d Cir. 2004) (“In sum, Connick’s reliance on freedom of association cases and the Supreme Court’s warning against the stratification of First Amendment freedoms convince us that a public employee bringing a freedom of association claim must demonstrate that the association or associational activity at issue touches on a matter of public concern.”); Klug v. Chi. Sch. Reform Bd. of Trs., 197 F.3d 853, 857 (7th Cir. 1999) (“[A] public employee is protected from adverse employment consequences based on the exercise of the right to freedom ,of association only when the associational conduct relates to a matter of public concern.”); Edwards v. City of Goldsboro, 178 F.3d 231," }, { "docid": "22590016", "title": "", "text": "could establish that the defendants issued the suspensions based on the plaintiffs’ membership in COBA. See id. at 8. The court also ruled that the individual defendants were not entitled to qualified immunity, explaining that the issue was fact-intensive and not appropriate for resolution at the summary judgment stage. See id. at 11. The case was tried to a jury on November 13, 26, and 27, 2001. The plaintiffs never filed a motion in limine to have the arbitrator’s findings accorded collateral es-toppel effect. Rather, after the district court’s deadline for the submission of jury instructions had passed, the plaintiffs submitted a proposed charge on the final day of testimony seeking to have the arbitrator’s findings accorded preclusive effect. The defendants objected to this instruction, arguing, among other things, that the jury should not be bound by the arbitrator’s findings concerning the defendants’ belief that the plaintiffs had participated in an unlawful job action on July 14, 1999. Adopting a view contrary to the one it had espoused earlier in the litigation, the district court accepted the plaintiffs’ proposed charge and instructed the jury that it was to accept as binding numerous findings made by the arbitrator. It also instructed the jury that as a matter of law ..., the activities COBA engaged in, which include collective bargaining or contract negotiations, ... filing grievances on behalf of members, ... seeking redress of grievances by way of arbitration and in the courts, and complaining to the public about the operation of the [DOC] are all protected by the First Amendment, and persons who belong to the union are protected from any adverse job action because of or motivated by such conduct. After the district court finished instructing the jury, defense counsel took an additional exception to the First Amendment freedom of association instruction. Specifically, counsel objected to the portion of the charge referencing COBA’s public criticism about the operation of the DOC and argued that there was no evidence in the trial record to support that assertion. Agreeing with the defendants’ contention on this point, the district court immediately cured the" }, { "docid": "22590041", "title": "", "text": "on a Matter of Public Concern, Was the Evidence Sufficient to Prove That Plaintiffs’ Membership in COBA Was a Motivating Factor for the Defendants to Discipline Them? On appeal, the plaintiffs contend that their “membership in COBA is, in and of itself, protected by the First Amendment.” We have not had occasion to decide whether union membership alone touches on a matter of public concern and therefore provides a proper basis for a First Amendment retaliation claim. In Clue v. Johnson, 179 F.3d 57 (2d Cir.1999), we held that union activities such as handing out leaflets and distributing a union newsletter satisfied Connick’s public concern requirement. See id. at 59, 61. Here, however, the plaintiffs distance themselves from any union activity. Instead, their brief repeatedly describes their retaliation claim as one of “pure free association” premised solely on the fact of their membership in COBA. We need not decide today whether such membership, by itself, touches on a matter of public concern. Assuming, without deciding, that it does, we conclude that there was not enough evidence from which a reasonable jury could infer that this allegedly protected expression was a substantial or motivating factor in the defendants’ decision to discipline the plaintiffs. A plaintiff can establish the causal connection between protected expression and an adverse employment determination indirectly “by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus.” Morris, 196 F.3d at 110. We generally are reluctant to reverse a district court’s denial of a motion for judgment as a matter of law in eases where questions concerning the employer’s state of mind predominate the inquiry into whether an employee’s expression was a substantial or motivating factor in the adverse employment decision. Cf. Piesco v. City of New York, 933 F.2d 1149, 1155 (2d Cir.1991), abrogation on other grounds recognized by Jeffries v. Harleston, 52 F.3d 9, 12 (2d Cir.1995). Nonetheless, we have held that a plaintiff may not rely on conclusory assertions of retaliatory motive to satisfy the causal link. See Morris, 196 F.3d at 111. Instead, he must" }, { "docid": "13947763", "title": "", "text": "first amendment. In fact, Connick itself was just such a case. There the plaintiff was distributing a questionnaire to other employees relating primarily to the terms and conditions of their employment. The Court, however, characterized the questionnaire as reflective of “one employee’s dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celebre,” 461 U.S. at 148, 103 S.Ct. at 1691, and concluded, with one exception, that it did not touch upon a matter of public concern. Cf. American Postal Workers Union v. United States Postal Service, 598 F.Supp. 564, 568-69 (D.D.C.1984) (postal worker’s column in union newsletter, discussing strategies for increasing union membership and right to work movement, distinguished from speech at issue in Connick). We conclude that an employee’s speech, activity or association, merely because it is union-related, does not touch on a matter of public concern as a matter of law. B. Having concluded that Connick is applicable to plaintiff’s claim, we must consider whether the basis for his suspension was speech or association touching on a matter of public concern. We have no doubt that an employee who is disciplined solely in retaliation for his membership in and support of a union states a valid first amendment claim under Connick and Pickering. See Grossart v. Dinaso, 758 F.2d 1221, 1230 n. 12 (7th Cir.1985); PACE, 730 F.2d at 262-63. The District Court found that “the defendant’s actions in this case were in substantial measure, if not entirely, the result of the defendant’s hostility to union activities.” 577 F.Supp. at 293. This is a factual finding subject to review under the clearly erroneous standard. Anderson v. City of Bessemer City, — U.S. -, -, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). The only significant discrepancy between Boals’ and Gray’s testimony was that Gray testified that Boals became loud and abusive prior to rather than after imposition of the additional two day suspension, and that Boals never specifically asked for a union rep. The District Court found: The facts of the case are rather simple, and with minor exceptions, there is no conflict" }, { "docid": "5591726", "title": "", "text": "Cir.2013) (“[T]he plaintiff must show that ... the speech at issue was made as a citizen on matters of public concern rather than as an employee on matters of personal interest....” (citation and internal quotation marks omitted)); Spencer v. Philemy, 540 Fed.Appx. 69, 70 (2d Cir.2013) (“[T]he First Amendment protects a public employee from retaliation by his or her employer for the employee’s speech only if ‘the employee sp[eaks] [1] as a citizen [2] on a matter of public concern.’” (alterations in original) (quoting Singer, 711 F.3d at 339)). The Second Circuit has held that the “public concern” requirement applies to associational conduct in addition to speech. Cobb v. Pozzi 363 F.3d 89, 102 (2d Cir.2004). In the context of unions, “[t]here is no doubt that retaliation against public employees solely for their union activities violates the First Amendment.” Buckley v. New York, 959 F.Supp.2d 282, 298 (E.D.N.Y.2013) (emphasis added) (quoting Clue v. Johnson, 179 F.3d 57, 60 (2d Cir.1999)). The Second Circuit has not held, however, that union membership, in and of itself, comprises “protected activity,” see Cobb, 363 F.3d at 107, but several district courts have reached this conclusion, see Frisenda v. Inc. Vill. of Malverne, 775 F.Supp.2d 486, 509 (E.D.N.Y.2011) (“[A]n employee’s association with a union, as well as any speech that arises from his or her position in a union, is constitutionally protected under the First Amendment.”); Buckley, 959 F.Supp.2d at 298 (“the Court finds that the Plaintiff’s union membership satisfies the public concern requirement.”); Donovan v. Inc. Vill. of Malverne, 547 F.Supp.2d 210, 218 (E.D.N.Y.2008) (finding that “the plaintiffs union membership, in and of itself, is enough to satisfy the public concern element”). Plaintiff alleges that she engaged in constitutionally protected activity by being active on the board of a union, which published a photograph of First Deputy Pu-Folkes attired in inappropriate uniform at the September 2009 United Nations detail. Plaintiff alleges that as a result of the publication of this photograph, she was threatened with going into the field and received multiple counseling memoranda. (Compl. ¶¶ 30-31; PL Opp’n Mem. 17.) Assuming without deciding" }, { "docid": "5591727", "title": "", "text": "“protected activity,” see Cobb, 363 F.3d at 107, but several district courts have reached this conclusion, see Frisenda v. Inc. Vill. of Malverne, 775 F.Supp.2d 486, 509 (E.D.N.Y.2011) (“[A]n employee’s association with a union, as well as any speech that arises from his or her position in a union, is constitutionally protected under the First Amendment.”); Buckley, 959 F.Supp.2d at 298 (“the Court finds that the Plaintiff’s union membership satisfies the public concern requirement.”); Donovan v. Inc. Vill. of Malverne, 547 F.Supp.2d 210, 218 (E.D.N.Y.2008) (finding that “the plaintiffs union membership, in and of itself, is enough to satisfy the public concern element”). Plaintiff alleges that she engaged in constitutionally protected activity by being active on the board of a union, which published a photograph of First Deputy Pu-Folkes attired in inappropriate uniform at the September 2009 United Nations detail. Plaintiff alleges that as a result of the publication of this photograph, she was threatened with going into the field and received multiple counseling memoranda. (Compl. ¶¶ 30-31; PL Opp’n Mem. 17.) Assuming without deciding that Plaintiffs leadership in the union is sufficient for the union’s First Amendment activity to be attributed to Plaintiff, Plaintiff cannot establish that Defendants took an adverse employment action against her as a result of said activity. In the context of a First Amendment retaliation claim, “a public employee plaintiff alleging retaliation in violation of the First Amendment [need not] demonstrate a material change in employment terms or conditions.” Zelnik, 464 F.3d at 227. Rather, the “standard for First Amendment retaliation claims has always been the equivalent to the standard set forth in Burlington Northern ” — that the action would dissuade a reasonable employee from speaking out. Id. Put another way, an adverse action is one that “would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Nixon v. Blumenthal, 409 Fed.Appx. 391, 392 (2d Cir.2010). Examples of such actions include “discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand,” Frisenda, 775 F.Supp.2d at 510 (quoting Morris v. Lindan, 196 F.3d 102, 110 (2d" }, { "docid": "11222052", "title": "", "text": "with it.” Smith, 441 U.S. at 464-65, 99 S.Ct. 1826. In a dictum, the Court suggested that the government’s action might not be lawful had it “tak[en] steps to prohibit or discourage union membership or association.” Id. at 466, 99 S.Ct. 1826. However, the case did not present that set of facts (the Court did not rule on it in any event), and nothing in the record suggests that any such steps occurred here. Moreover, Connick v. Myers, 461 U.S. 138, 154, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), subsequently clarified that the First Amendment Speech Clause provides a cause of action for retaliation claims only when a public employee speaks on matters of public concern. See also Borough of Duryea v. Guarnieri, 564 U.S. 379, 131 S.Ct. 2488, 180 L.Ed.2d 408 (2011) (applying the public concern requirement to causes of action under the Amendment’s Petition Clause). The District Court also grounded its conclusion in Labor v. Lalley, 809 F.2d 220 (3d Cir. 1987), in which we held that the First Amendment protects the right of a public employee to organize an association for the purposes of collective bargaining. We later clarified that Labor held “only that efforts of public employees to associate together for the purpose of collective bargaining involve associational interests which the First Amendment protects from hostile state action.” Sanguigni v. Pittsburgh Bd. of Pub. Educ., 968 F.2d 393, 400 (3d Cir. 1992) (internal quotations omitted). Neither Smith nor Labor establish whether, and to what extent, the First Amendment’s right to expressive association provides a cause of action for a union member in an employment dispute who claims retaliation based on his passive membership in a union whose representatives oppose internal policies. In Sanguigni, we emphasized Labor “d[id] not make clear” whether Connick’s public concern requirement for public employee speech applies in associational cases. Id. We recognized that, in the years since we decided Labor, our Court had not' settled the question of whether a -public employee must demonstrate that the union representative’s advocacy raises a matter of public concern in bringing a claim for expressive association." }, { "docid": "13947774", "title": "", "text": "this context to recognize the [union] and bargain with it.” Smith, 441 U.S. at 465, 99 S.Ct. at 1828 (footnote omitted). Having carefully reviewed all of the evidence and inferences possible therefrom in the light most favorable to the plaintiff, we conclude that there is simply no evidence to support a finding that the initial three-day suspension imposed on Boals had any relationship to his union membership or activities. The only possible first amendment claim remaining is that the additional two-day suspension was tacked on because Boals made the statement, “ ‘Wait a minute. If this is the way it’s going to be, I want the union representative, a lawyer. I want somebody here with me.’ ” In our judgment, this is not indicative of speech or association touching on a matter of public concern. It is a challenge to Gray’s authority, involving a matter of internal discipline of concern to Boals alone. Cf. Parker v. Cronvich, 567 F.Supp. at 1076 (“The only ‘expression’ by Schilling and Parker was the shouting match that developed on September 27, and both deputies conceded at trial that their actions amounted to insubordination, if minimal ones. If Sheriff Cronvich’s reasons for firing the two deputies were based solely upon that incident, then he fired them for insubordination, which was a matter committed to his discretion and not in violation of their freedom of speech.”). We conclude that the District Court’s finding in favor of plaintiff on his first amendment claim must be reversed. IV. The District Court also awarded Boals $5000 in punitive damages. Since we have concluded that the defendant violated neither plaintiff’s right to procedural due process nor his first amendment rights of speech and association, the punitive damages award must be vacated as well. V. The parties have argued extensively the question of whether Boals retained standing to present the question of the constitutionality of O.R.C. § 124.34 after leaving the employment of the State. In dismissing plaintiff’s claim for declaratory relief, the District Court analogized to Holt v. Moore, 541 F.2d 460 (4th Cir.1976), in which a prisoner challenging certain" }, { "docid": "12076293", "title": "", "text": "under Rules 12(b)(6) and 56, Fed.R.Civ.P., on August 11, 1989. The district judge issued an order dismissing the section 1983 union activities claim pursuant to Rule 12(b)(6). The district judge granted summary judgment for the appel-lees on the section 1983 political affiliation claim and the state law slander claim. The district judge remanded the remaining claims to state court, and the appellants filed a timely appeal to this court. The appellants appeal the district judge’s ruling that the union activities claim must be dismissed under Rule 12(b)(6). They assert that their first amendment free speech and associational rights are separate and distinct and, therefore, the district court erred in applying the Supreme Court’s free speech analysis in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), to their first amendment free association claim. The Connick Court held that in the discipline of public employees, only speech that involves a matter of “public concern” is protected by the first amendment. Id. at 146, 103 S.Ct. at 1689-90 (footnote omitted). This court held in Boals v. Gray, 775 F.2d 686, 692 (6th Cir.1985), that no logical reason exists for distinguishing between speech and association in applying Connick to first amendment claims, including union activities claims. Thus, appellants’ attempt to distinguish their freedom of association claim is without merit. In dismissing the appellants’ allegations of discharge for union activities claim, however, the district judge based his holding on the proposition that appellants failed to aver in their complaint that their union activities touched on a matter of public concern. Because the appellants failed to allege that the union activities touched on a matter of public concern, the district judge reasoned that under Connick, supra, they failed to state a claim for which relief can be granted. We disagree. We find the appellants’ union activities claim sufficient to state a claim under the minimal requirements of notice pleading, Rule 8(a), Fed.R.Civ.P. We note, however, that appellees provided the affidavit of Marlinga, clearly stating that he was not aware of any union activities on the part of the Balkwills and Russ." }, { "docid": "22590020", "title": "", "text": "January 17, 2002, and this timely appeal followed. DISCUSSION I. Judgment as a Matter of Law A. Standard of Review On appeal, the defendants argue, among other things, that the district court erred in failing to grant their Rule 50 motion for judgment as a matter of law. We review a district court’s ruling on a Rule 50 motion de novo, and apply the same standard used by the district court below, see Phillips v. Bowen, 278 F.3d 103, 108 (2d Cir.2002). Provided the proper pre-verdict motion has been made and renewed, Rule 50(a) permits a district court to enter judgment as a matter of law against a party on an issue where “ ‘there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.’ ” Nadel, 321 F.3d at 271-72 (quoting Fed.R.Civ.P. 50(a)). “The standard for post-verdict judgment as a matter of law is the same as for summary judgment under Fed.R.Civ.P. 56.” Id. at 272 (citation omitted). Accordingly, [a] district court must deny a motion for judgment as a matter of law unless, viewed in the light most favorable to the nonmoving party, “the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached.” Id. (quoting Cruz v. Local Union No. Three of the Int’l Bhd. of Elec. Workers, 34 F.3d 1148, 1154-55 (2d Cir.1994)). B. First Amendment Retaliation The plaintiffs allege in their complaint that the defendants violated their First Amendment right to freedom of association by subjecting them to disciplinary charges in retaliation for their membership in COBA. The defendants respond that to be protected under the First Amendment, the plaintiffs must show that their associational activity touches on a matter of public concern. The defendants maintain that because the plaintiffs have not made this showing, their freedom of association claim fails. Public employees do not surrender their First Amendment rights to comment on matters of public interest by virtue of their acceptance" }, { "docid": "22590024", "title": "", "text": "that the plaintiffs expression was likely to disrupt the government’s activities, and that the likely disruption was sufficient to outweigh the value of the plaintiffs First Amendment expression. See id. at 382-83 (citing Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999) and Locurto v. Safir, 264 F.3d 154, 166 (2d Cir.2001)). The latter balancing rationale is commonly known as the “Pickering balancing test” and represents a question of law for the court to decide. See Locurto, 264 F.3d at 166. 1. Does Connick’s Public Concern Inquiry Apply to Freedom of Association Claims as Well as Free Speech Claims? Here, the Court is presented with a First Amendment retaliation claim based on freedom of association rather than freedom of speech. Taking positions that mirror a split in the circuits, the parties disagree over whether Connick’s public concern requirement applies to such claims. See Tang v. R.I. Dep’t of Elderly Affairs, 163 F.3d 7, 11 n. 4 (1st Cir.1998) (noting disagreement among circuits surrounding applicability of Connick to freedom of association claims, but declining to address issue). The defendants contend that a retaliation claim predicated on an employee’s right to freedom of association requires that a plaintiff satisfy Connick by demonstrating that his associational activity touches on a matter of public concern. The plaintiffs respond that Connick’s threshold requirement is limited to retaliation claims premised on free speech, and that their associational activity, to be protected, need not touch on a matter of public concern. We agree with the defendants and, joining the Fourth, Sixth and Seventh circuits, hold that a public employee bringing a First Amendment freedom of association claim must persuade a court that the associational conduct at issue touches on a matter of public concern. See Klug v. Chicago Sch. Reform Bd. of Trs., 197 F.3d 853, 857 (7th Cir.1999) (“In this circuit, a public employee is protected from adverse employment consequences based on the exercise of the right to freedom of association only when the associational conduct relates to a matter of public concern.”); Eckvards v. City of Goldsboro, 178 F.3d 231, 249-50 (4th Cir.1999) (applying public" }, { "docid": "22590042", "title": "", "text": "evidence from which a reasonable jury could infer that this allegedly protected expression was a substantial or motivating factor in the defendants’ decision to discipline the plaintiffs. A plaintiff can establish the causal connection between protected expression and an adverse employment determination indirectly “by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus.” Morris, 196 F.3d at 110. We generally are reluctant to reverse a district court’s denial of a motion for judgment as a matter of law in eases where questions concerning the employer’s state of mind predominate the inquiry into whether an employee’s expression was a substantial or motivating factor in the adverse employment decision. Cf. Piesco v. City of New York, 933 F.2d 1149, 1155 (2d Cir.1991), abrogation on other grounds recognized by Jeffries v. Harleston, 52 F.3d 9, 12 (2d Cir.1995). Nonetheless, we have held that a plaintiff may not rely on conclusory assertions of retaliatory motive to satisfy the causal link. See Morris, 196 F.3d at 111. Instead, he must produce “some tangible proof to demonstrate that [his] version of what occurred was not imaginary.” Id. In determining whether the causation requirement was satisfied in this case, we must bear in mind that Officers Cobb and Rouse do not contend that their conduct in refusing to work overtime represents the protected expression that prompted their discipline; they make clear that their respective refusals to work overtime were in no way connected to, or inspired by, COBA. Rather, as noted above, the plaintiffs maintain that their COBA membership alone constitutes the protected activity on which their retaliation claim is based. The evidence presented at trial, however, was not sufficient to permit a reasonable jury to conclude that the plaintiffs’ membership in COBA was a motivating factor in the defendants’ decision to discipline them. Rather, it strongly suggested that the defendants acted because they believed that the plaintiffs were engaged in an unlawful job action. Numerous witnesses 'testified that the facts surrounding the events of July 14, 1999 led them to conclude that a job action was" }, { "docid": "22590039", "title": "", "text": "on a matter of public interest was “totally beyond the protection of the First Amendment,” but merely that such speech did not give rise to a cause of action in federal court “to, review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” Boals, 775 F.2d at 692 (quoting Connick, 461 U.S. at 147, 103 S.Ct. 1684, and concluding that the public concern requirement applied to the plaintiffs freedom of association claim). In other words, Con-nick did not hold that a public employee completely relinquishes his First Amendment rights in taking public employment, it merely defined a category of public employee speech — speech on matters of private concern — that could not provide a proper basis for a federal cause of action for an adverse employment action. See Griffin, 929 F.2d at 1213; Connick, 461 U.S. at 147, 103 S.Ct. 1684 (“We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, ... a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” (emphasis added)). Similarly, our holding today requiring Officers Cobb and Rouse to show that them assoeiational activity touches on matters of public concern does not mean that assoeiational activity that touches only on matters of private concern is “totally beyond” the First Amendment’s protection. Rather, it simply recognizes, as Connick did in the context of free speech, that some assoeiational activity— that activity touching only on matters of private concern — cannot support a claim for First Amendment retaliation in the employment context. In sum, Connick’s reliance on freedom of association cases and the Supreme Court’s warning against the stratification of First Amendment freedoms convince us that a public employee bringing a freedom of association claim must demonstrate that the association or assoeiational activity at issue touches on a matter of public concern. 2. Assuming That Union Membership Touches" }, { "docid": "22590025", "title": "", "text": "issue). The defendants contend that a retaliation claim predicated on an employee’s right to freedom of association requires that a plaintiff satisfy Connick by demonstrating that his associational activity touches on a matter of public concern. The plaintiffs respond that Connick’s threshold requirement is limited to retaliation claims premised on free speech, and that their associational activity, to be protected, need not touch on a matter of public concern. We agree with the defendants and, joining the Fourth, Sixth and Seventh circuits, hold that a public employee bringing a First Amendment freedom of association claim must persuade a court that the associational conduct at issue touches on a matter of public concern. See Klug v. Chicago Sch. Reform Bd. of Trs., 197 F.3d 853, 857 (7th Cir.1999) (“In this circuit, a public employee is protected from adverse employment consequences based on the exercise of the right to freedom of association only when the associational conduct relates to a matter of public concern.”); Eckvards v. City of Goldsboro, 178 F.3d 231, 249-50 (4th Cir.1999) (applying public concern requirement to free association claim and observing that “[ljogically, the limitations on a public employee’s right to associate are ‘closely analogous’ to the limitations on his right to speak”); Boals v. Gray, 775 F.2d 686, 692 (6th Cir.1985) (“We perceive no logical reason for differentiating between speech and association in applying Connick to first amendment claims, and hold that it is so applicable.”); see also Martin v. City of Del City, 179 F.3d 882, 888 (10th Cir.1999) (“This court has applied the[ ] principles from Connick v. Myers ... in deciding First Amendment claims asserted by a' public employee, who had claimed violations of her right to freedom of speech, freedom of association, and to petition for redress of grievances.”). But see Boddie v. City of Columbus, 989 F.2d 745, 747 (5th Cir.1993) (holding that a plaintiff asserting a First Amendment freedom of association claim need not show that his or her associational activity touched upon a matter of public concern); Hatcher v. Bd. of Pub. Educ. & Orphanage, 809 F.2d 1546, 1558 (11th" } ]

[ { "docid": "22322589", "title": "", "text": "foreclosed from deciding the issue because petitioner did not introduce any evidence about the effect of taxation on Gaedecke’s future earnings. No evidentiary predicate is required to instruct a jury not to consider taxes. Respondents’ argument that Liepelt should apply prospectively only is insubstantial. Here, we address a change in the law occurring while the case is on direct appeal. \"[A]n appellate court must apply the law in effect at the time it renders its decision.” Thorpe v. Housing Authority of City of Durham, 393 U. S. 268, 281 (1969); see United States v. Schooner Peggy, 1 Cranch 103 (1801). While there well might be an exception to the rule to prevent “manifest injustice,” Bradley v. Richmond School Board, 416 U. S. 696, 717 (1974), this equitable exception does not reach a private civil suit where the change does not extinguish a cause of action but merely requires a retrial on damages before a properly instructed jury. Lang v. Texas & Pacific R. Co., 624 F. 2d 1275, 1279-1280, and n. 9 (CA5 1980). Indeed, considerations of fairness support retroactive application: failure to give the instruction may lead to the plaintiff recovering a windfall award. Norfolk & Western R. Co. v. Liepelt, supra, at 497-498. The overwhelming weight of authority supports retroactive application of this decision. See O’Byrne v. St. Louis Southwestern R. Co., 632 F. 2d 1285 (CA5 1980); Flanigan v. Burlington Northern Inc., 632 F. 2d 880 (CA8 1980); Lang v. Texas & Pacific R. Co., supra; Crabtree v. St. Louis-San Francisco R. Co., 89 Ill. App. 3d 35, 411 N. E. 2d 19 (1980). Other eases have applied Liepelt retroactively without comment. Cazad v. Chesapeake & Ohio R. Co., 622 F. 2d 72 (CA4 1980); Seaboard Coast Line R. Co. v. Yow, 384 So. 2d 13 (Ala. 1980). But see Ingle v. Illinois Central Gulf R. Co., 608 S. W. 2d 76 (Mo. App. 1980), cert. denied, 450 U. S. 916 (1981). The general applicability of Liepelt is indicated by the Court’s quotation with approval of the explanation of need for the instruction in Domeracki v. Humble" } ]

[ { "docid": "4404976", "title": "", "text": "from six to two years. The plaintiffs argued before the Supreme Court that the circuit court’s decision to require retroactive application was in error. In making their argument the plaintiffs relied upon the three-part balancing test established in Chevron Oil Co. v. Huson, 404 U.S. 97, 105-08, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971), which requires a court to determine (1) whether the decision sought to be applied retroactively established a new principle of law and overruled clear circuit precedent upon which litigants may have relied, (2) whether the underlying purpose behind the substantive change in the limitations period would be served by retroactive application, and (3) whether retroactive application would be equitable to the parties. The Supreme court disagreed with the plaintiffs’ contentions, holding that, because the law was unsettled as to the applicable statute of limitations at the time the plaintiffs filed their complaint in 1973 and because there was thus no clear precedent on which plaintiffs could have relied, the decision to give retroactive effect to Wilson and its progeny was proper under the Chevron analysis. Goodman, 482 U.S. at 552-63, 107 S.Ct. at 2621-22. Moreover, the Court concluded that such a decision would be consistent with Wilson’s mandate and would not result in inequitable treatment to the parties. The Supreme Court again utilized Chevron’s three-part test in St. Francis College to affirm a Third Circuit decision holding that the change in the applicable statute of limitations should not be given retroactive effect, in marked contrast to Goodman which was decided during the same term. Similarly to Goodman, St. Francis College arose in Pennsylvania and concerned the issue of whether federal courts should honor the six-year statute of limitations held in effect at the filing of the complaint, or whether the new two-year statute of limitations was applicable. However, in contrast to Goodman, the law of the Third Circuit at the time that the St. Francis College complaint was filed in 1980 clearly established that a six-year statute of limitations was applicable in § 1981 actions. Because a change in the applicable statute of limitations represented" }, { "docid": "10527203", "title": "", "text": "In Goodman v. Lukens Steel, 107 S.Ct. at 2617, the Supreme Court discussed the application of Chevron to a decision involving a statute of limitations. The Court explained that a decision specifying the applicable statute of limitations should not be applied retroactively if the decision overrules clear precedent on which the plaintiff was entitled to rely, if “the new limitations period had been occasioned by a change in the substantive law the purpose of which would not be served by retroactivity,” and if retroactive application would be inequitable. Id. The Chevron Oil factors do not militate against retroactive application in the present case. First, there was no clearly established precedent on which Bush was entitled to rely. At the time he filed his claim, neither the Seventh Circuit nor the Supreme Court had specified the applicable limitations period. In similar circumstances, the Supreme Court has not hesitated to apply its decision retroactively. In Goodman, 107 S.Ct. 2622, prior to the Court’s decision, there was no clear statute of limitations for § 1981 claims. The Court rejected the plaintiff’s plea for non-retroactivity, stating that “there had been no authoritative specification of which statute of limitations applied to an employee’s § 1981 claim, and hence no clear precedent on which petitioners could have relied....” Id. Applying the Court’s reasoning in Goodman to this case, we find that the first Chevron factor supports retroactivity. The second and third Chevron factors also favor retroactivity. The limitations period that we apply to Bush’s claim was not “occasioned by change in the substantive law the purpose of which would not be served by retroactivity.” Id. 107 S.Ct. at 2621. Finally, the equities of the case do not favor Bush; he is charged with knowledge of the unsettled nature of the law at the time he filed the complaint. Id. at 2622. Because none of the Chevron factors hinder retroactive application of our decision, we apply the two year statute of limitations to Bush’s claim. Because he filed his action more than two years after he was terminated, his claim is time barred. Accordingly, we grant Edison’s" }, { "docid": "5668295", "title": "", "text": "Labor Relations Act, 29 U.S.C. § 160, applies to actions brought by an employee for breach of contract and breach of fair representation. DelCostello v. International Brotherhood of Teamsters, _ U.S. _, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Generally, “an appellate court must apply the law in effect at the time it renders its decision.” Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969). See United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801). Murray contends, however, that DelCostello should not be applied retroactively, relying on Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971). We are persuaded by Perez v. Dana Corp., 718 F.2d 581 (3d Cir.1983), that Del-Costello should be applied retroactively. In that case, the court found that, applying the Chevron test, the six-month statute of limitations was not an abrupt and fundamental shift in a doctrine on which the plaintiff relied because the prior law was erratic and inconsistent. The court also found that the purpose of the DelCostello rule and the equities of the plaintiff’s case required retroactive application of the decision. We can only add that the equities of the instant case, including the fact that Murray waited almost 29 months to file suit, do not change our conclusion. Murray’s claims against Branch and the union are barred by the six-month statute of limitations, and the judgment of the district court dismissing the action is affirmed. The Seventh and Eleventh Circuits, without discussion of the issue, have applied DelCostello retroactively. Ernst v. Indiana Bell Telephone Co., Inc., 717 F.2d 1036 (7th Cir.1983); Hand v. International Chemical Workers Union, 712 F.2d 1350 (11th Cir.1983). See also Curtis v. International Brotherhood of Teamsters, Local 299, 716 F.2d 360 (6th Cir.1983) (dicta)." }, { "docid": "22390341", "title": "", "text": "the Third Circuit that a § 1981 plaintiff had six years to bring an action and that Goodman should not be applied retroactively to bar respondent’s suit. Insofar as what the prevailing law was in the Third Circuit, we have no reason to disagree with the Court of Appeals. Under controlling precedent in that Circuit, respondent had six years to file his suit, and it was filed well within that time. See 784 F. 2d, at 512-513. We also assume but do not decide that Wilson v. Garcia controls the selection of the applicable state statute of limitations in § 1981 cases. The Court of Appeals, however, correctly held that its decision in Goodman should not be retroactively applied to bar respondent’s action in this case. The usual rule is that federal cases should be decided in accordance with the law existing at the time of decision. Gulf Offshore Co. v. Mobil Oil Corp., 453 U. S. 473, 486, n. 16 (1981); Thorpe v. Durham Housing Authority, 393 U. S. 268, 281 (1969); United States v. Schooner Peggy, 1 Cranch 103, 110 (1801). But Chevron Oil Co. v. Huson, supra, counsels against retroactive application of statute of limitations decisions in certain circumstances. There, the Court held that its decision specifying the applicable state statute of limitations should be applied only prospectively because it overruled clearly established Circuit precedent on which the complaining party was entitled to rely, because retroactive application would be inconsistent with the pur pose of the underlying substantive statute, and because such application would be manifestly inequitable. The Court of Appeals found these same factors were present in this case and foreclosed retroactive application of its decision in Goodman. We perceive no good reason for not applying Chevron where Wilson has required a Court of Appeals to overrule its prior cases. Nor has petitioner persuaded us that there was any error in the application of Chevron in the circumstances existing in this case. II Section 1981 provides: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to" }, { "docid": "10527202", "title": "", "text": "year period. Bush argues that this statute is analogous because his claim arises out of an employment relationship, which is contractual. However, in determining the appropriate limitations period, the inquiry centers on the nature of the remedy sought, rather than the factual basis for the plaintiff’s claim. The Rehabilitation Act protects those who have suffered discrimination because of a physical handicap. A contractual relationship between the plaintiff and defendant is not an element of the claim. Therefore, we find that the statute of limitations for contract actions is not analogous to the Rehabilitation Act. See, Andrews v. Consolidated Rail Corp., 831 F.2d 678, 683 (7th Cir.1987) (Court applied an Indiana statute of limitations that explicitly excluded contract actions to Rehabilitation Act claim). Bush argues that if we determine that a two year statute of limitations is applicable to Rehabilitation Act claims, we should not apply this rule retroactively to bar his claim. We disagree. As we observed earlier, the three factor analysis of Chevron Oil Co. v. Huson, 92 S.Ct. 349, governs the retroactivity inquiry. In Goodman v. Lukens Steel, 107 S.Ct. at 2617, the Supreme Court discussed the application of Chevron to a decision involving a statute of limitations. The Court explained that a decision specifying the applicable statute of limitations should not be applied retroactively if the decision overrules clear precedent on which the plaintiff was entitled to rely, if “the new limitations period had been occasioned by a change in the substantive law the purpose of which would not be served by retroactivity,” and if retroactive application would be inequitable. Id. The Chevron Oil factors do not militate against retroactive application in the present case. First, there was no clearly established precedent on which Bush was entitled to rely. At the time he filed his claim, neither the Seventh Circuit nor the Supreme Court had specified the applicable limitations period. In similar circumstances, the Supreme Court has not hesitated to apply its decision retroactively. In Goodman, 107 S.Ct. 2622, prior to the Court’s decision, there was no clear statute of limitations for § 1981 claims. The Court" }, { "docid": "22556329", "title": "", "text": "on racial grounds. The provision asserts, in effect, that competence and capacity to contract shall not depend upon race. It is thus part of a federal law barring racial discrimination, which, as the Court of Appeals said, is a fundamental injury to the individual rights of a person. Wilson’s characterization of §1983 claims is thus equally appropriate here, particularly since §1983 would reach state action that encroaches on the rights protected by § 1981. That § 1981 has far-reaching economic consequences does not change this conclusion, since such impact flows from guaranteeing the personal right to engage in economically significant activity free from racially discriminatory interference. The Court of Appeals was correct in selecting the Pennsylvania 2-year limitations period governing personal injury actions. We also agree with the Court of Appeals that the 2-year statute, adopted in compliance with Wilson, should be applied in this case. The usual rule is that federal cases should be decided in accordance with the law existing at the time of decision. Gulf Offshore Co. v. Mobil Oil Corp., 453 U. S. 473, 486, n. 16 (1981); Thorpe v. Housing Authority of Durham, 393 U. S. 268, 281 (1969); United States v. Schooner Peggy, 1 Cranch 103, 109 (1801). But Chevron Oil Co. v. Huson, 404 U. S. 97 (1971), advises that nonretroactivity is appropriate in certain defined circumstances. There the Court held that a decision specifying the applicable state statute of limitations in another context should not be applied retroactively because the decision overruled clear Circuit precedent on which the complaining party was entitled to rely, because the new limitations period had been occasioned by a change in the substantive law the purpose of which would not be served by retroactivity, and because retroactive application would be inequitable. Petitioners argue that the same considerations are present here. We disagree. It is true, as petitioners point out, that the Court of Appeals decision in this case overruled prior Third Circuit cases, Meyers v. Pennypack Woods Home Ownership Assn., 559 F. 2d 894 (1977); Davis v. United States Steel Supply, Div. of United States Steel Corp.," }, { "docid": "3598938", "title": "", "text": "Goodman should be applied retroactively to bar plaintiff’s claim under the general rule that “cases should be decided in accordance with the law existing at the time of decision.” Goodman, 107 S.Ct. at 2621. An exception to this general maxim exists where: (1) the decision at issue overrules clear precedent on which litigants may have relied or addresses an issue of first impression which was not foreshadowed; (2) retroactive application of the decision would retard the operation of a federal statute; and (3) retroactive application would result in substantial inequity. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355-356, 30 L.Ed.2d 296 (1971). We agree with the district court that such an exception to retroactive application is warranted here. Prior to the decision in Goodman on June 19, 1987, precedent in this Circuit beginning with Waters v. Wisconsin Steel Works, 427 F.2d 476, 488 (7th Cir.1970), certiorari denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151, 911, established that the Illinois five-year statute of limitations for residual claims (Ill.Rev.Stat. ch. 110, 1113-205 (1983)), applied to actions under Section 1981. This case is therefore distinguishable from Goodman in which the Court determined that there was no clear precedent within the Third Circuit on which plaintiffs could have relied in filing their suit and applied the statute of limitations retroactively to the claims of that class of plaintiffs. Plaintiff here, however, was clearly justified in relying on this Court’s case law applying the five-year statute of limitations prior to Goodman. Conceding that the five-year statute of limitations had been applied to Section 1981 actions in this Circuit prior to Goodman, defendant argues that plaintiff should have been forewarned as to the holding in Goodman by the Supreme Court’s earlier decision in Wilson. By analogy to Section 1983 actions, defendant contends, plaintiff should have concluded that Section 1981 actions would likewise be subject to the two-year Illinois personal injury statute of limitations. This Court rejected similar reasoning in Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372, 1380 (7th Cir.1986). There this Court refused to apply the Illinois" }, { "docid": "11642487", "title": "", "text": "that type of action. Wilson v. Garcia, 471 U.S. 261, 275, 276, 280, 105 S.Ct. 1938, 1946, 1947, 1949, 85 L.Ed.2d 254 (1985). In June, 1987, the Supreme Court upheld the Third Circuit’s application of the Wilson doctrine to an action under § 1981. Goodman v. Lukens Steel Co., 482 U.S. 656, 660-64, 107 S.Ct. 2617, 2620-23, 96 L.Ed.2d 572 (1987). The Indiana statute of limitations for injuries to the person allows two years, so that Goodman results in a two year Imitation period for section 1981 actions in Indiana. Mr. Coopwood argues that Goodman should not apply retroactively to a § 1981 action in Indiana against a public officer. He contends his action was timely, having been filed within five years of accrual and within two years of the date Goodman was decided. Although the usual rule is that decisions apply retroactively, id. at 662, 107 S.Ct. at 2621, in certain circumstances, retroactive application is inappropriate. In Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971) (citations omitted), the Supreme Court enunciated three factors to consider in deciding whether to apply cases prospectively only: First, the decision to be applied nonretro-actively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” The first factor is the most significant in this case. We conclude that Goodman did not overrule clear precedent governing section 1981 actions in Indiana. In 1984, when plaintiff’s cause of action" }, { "docid": "5668294", "title": "", "text": "BUTZNER, Senior Circuit Judge: After John Murray was discharged by Branch Motor Express Company, his union ■ filed a grievance on his behalf. When the parties failed to resolve the dispute, the matter was submitted to arbitration. The arbitrator concluded that Murray’s discharge was proper in an award dated April 22, 1976. On September 13, 1978, Murray filed an action under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, charging Branch with breach of the collective bargaining agreement, and the union with breach of its duty of fair representation by mishandling the matter. The district court granted summary judgment for Branch and the union because, in addition to the claim’s lack of merit, the action was barred by Maryland’s 30-day statute of limitations for vacation of arbitration awards which was made applicable by United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). While Murray’s appeal was pending, the Supreme Court held that the six-month statute of limitations contained in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160, applies to actions brought by an employee for breach of contract and breach of fair representation. DelCostello v. International Brotherhood of Teamsters, _ U.S. _, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Generally, “an appellate court must apply the law in effect at the time it renders its decision.” Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969). See United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801). Murray contends, however, that DelCostello should not be applied retroactively, relying on Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971). We are persuaded by Perez v. Dana Corp., 718 F.2d 581 (3d Cir.1983), that Del-Costello should be applied retroactively. In that case, the court found that, applying the Chevron test, the six-month statute of limitations was not an abrupt and fundamental shift in a doctrine on which the plaintiff relied because the prior" }, { "docid": "14357170", "title": "", "text": "in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the court determined that Mitchell should be applied retroactively. Because Perez had failed to file his suit within the Pennsylvania statute of limitations for actions to vacate arbitration awards, the district court held that Perez’s claims were time-barred. Perez filed a notice of appeal to this court on September 13, 1982. While that appeal was pending the Supreme Court decided DelCostello v. International Brotherhood of Teamsters,-U.S.-, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), which addressed the argument that the Court had left unconsidered in Mitchell. The Supreme Court held that the most apt analogy for an employee’s Vaca-Hines suit against an employer and a union was to the six-month statute of limitations set forth in section 10(b) of the NLRA, and not to any state statute of limitations. The Court concluded that section 10(b) “should be the applicable statute of limitations governing the suit, both against the employer and against the union.” Id. at 2285. II As a general rule an appellate court must apply the law in effect at the time it renders its decision. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 486 n. 16, 101 S.Ct. 2870, 2879 n. 16, 69 L.Ed.2d 784 (1981); United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103,110, 2 L.Ed. 49 (1801); Behring International v. Imperial Iranian Air Force, 699 F.2d 657, 665-66 (3d Cir.1983). Perez’s Vaca-Hines suit against his employer and his union is indistinguishable from the suits involved in DelCostello. Consequently, if DelCostello applies retroactively, section 10(b)’s six-month statute of limitations, rather than any state statute of limitations, applies to bar Perez’s claims. Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), sets forth three factors that we must consider to determine whether a civil statute of limitations applies retroactively. See Marino v. Bowers, 657 F.2d 1363, 1365 (3d Cir.1982) (en banc). First, we must determine whether the decision establishes “a new principle of law, either by overruling clear past precedent on which the litigants" }, { "docid": "22390340", "title": "", "text": "not sufficient to determine whether he had been subjected to the sort of prejudice § 1981 would redress, respondent was to be given the opportunity to prove his case. We granted certiorari, 479 U. S. 812 (1986), limited to the statute of limitations issue and the question whether a person of Arabian ancestry was protected from racial discrimination under § 1981, and now affirm the judgment of the Court of Appeals. 1 — ( We agree with the Court of Appeals that respondent’s claim was not time barred. Wilson v. Garcia, 471 U. S. 261 (1985), required that in selecting the applicable state statute of limitations in § 1983 cases, the lower federal courts should choose the state statute applicable to other personal injury-torts. Thereafter, the Third Circuit in Goodman held that Wilson applies to § 1981 cases as well and that the Pennsylvania 2-year statute should apply. The Court of Appeals in this case, however, held that when respondent filed his suit, which was prior to Wilson v. Garcia, it was clearly established in the Third Circuit that a § 1981 plaintiff had six years to bring an action and that Goodman should not be applied retroactively to bar respondent’s suit. Insofar as what the prevailing law was in the Third Circuit, we have no reason to disagree with the Court of Appeals. Under controlling precedent in that Circuit, respondent had six years to file his suit, and it was filed well within that time. See 784 F. 2d, at 512-513. We also assume but do not decide that Wilson v. Garcia controls the selection of the applicable state statute of limitations in § 1981 cases. The Court of Appeals, however, correctly held that its decision in Goodman should not be retroactively applied to bar respondent’s action in this case. The usual rule is that federal cases should be decided in accordance with the law existing at the time of decision. Gulf Offshore Co. v. Mobil Oil Corp., 453 U. S. 473, 486, n. 16 (1981); Thorpe v. Durham Housing Authority, 393 U. S. 268, 281 (1969); United States" }, { "docid": "22700379", "title": "", "text": "action brought under a particular federal statute. At the time the lawsuit was initiated, the rule was that federal law governed. This Court changed the rule, holding that the timeliness of an action should be governed by state law. The Court declined to apply the state statute of limitations in that case, however, because the action had been filed long before the new rule was announced. The Court recognized, sensibly, that its decision overruled a long line of Court of Appeals’ decisions on which the respondent had properly relied, id., at 107; that retroactive application would be inconsistent with the purpose of using state statutes of limitations, id., at 107-108; and that it would be highly inequitable to pretend that the respondent had “ ‘slept on his rights’” when, in reality, he had complied fully with the law as it existed and could not have foreseen that the law would change. Id., at 108. We followed precisely the same course several years later in Saint Francis College v. Al-Khazraji, 481 U. S. 604 (1987). We declined to apply a decision specifying the applicable statute of limitations retroactively because doing so would bar a suit that, under controlling Circuit precedent, had been filed in a timely manner. We relied expressly on the analysis of Chevron Oil, holding that a decision identifying a new limitations period should be applied only prospectively where it overrules clearly established Circuit precedent, where retroactive application would be inconsistent with the purpose of the underlying statute, and where doing so would be “manifestly inequitable.” Saint Francis College, supra, at 608-609. Chevron Oil and Saint Francis College are based on fundamental notions of justified reliance and due process. They reflect a straightforward application of an earlier line of cases holding that it violates due process to apply a limitations period retroactively and thereby deprive a party arbitrarily of a right to be heard in court. See Wilson v. Iseminger, 185 U. S. 55, 62 (1902); Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U. S. 673, 681-682 (1930). Not surprisingly, then, the Court's decision in Chevron Oil and" }, { "docid": "22423964", "title": "", "text": "American Pipe & Construction Co. v. Utah, 414 U. S. 538, 559 (1974) (Stewart, J.). When the federal courts have no equitable discretion, we have held a federal court has no authority to refuse to apply a law retroactively. See Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 379 (1981). The remainder of our “retroactivity” cases fit into a similar mold. In Saint Francis College v. Al-Khazraji, 481 U. S. 604 (1987), we once again recognized that “[t]he usual rule is that federal cases should be decided in accordance with the law existing at the time of decision,” id., at 608 (citing Gulf Offshore Co. v. Mobil Oil Corp., 453 U. S. 473, 486, n. 16 (1981); Thorpe v. Housing Authority of Durham, 393 U. S. 268, 281 (1969); United States v. Schooner Peggy, 1 Cranch 103, 110 (1801)), but found that Chevron Oil “counselled] against retroactive application of statute of limitations decisions in certain circumstances.” 481 U. S., at 608 (emphasis added). Without deciding the correct statute of limitations period ourselves, we held that the respondent’s claim was not time barred because it was timely filed under clearly established law in the Circuit. By contrast, in Goodman v. Lukens Steel Co., 482 U. S. 656 (1987), we gave retroactive effect to our decision on the statute of limitations for suits under 42 U. S. C. § 1981—which overruled clearly established law in the Circuit—because at the time the complaining party brought suit there was no clear Circuit precedent on which it was entitled to rely. 482 U. S., at 662-663. Saint Francis College and Lukens Steel Co. make clear that Chevron Oil does not alter the principle that consummated transactions are analyzed under the best current understanding of the law at the time of decision, but rather establishes a principle particular to the exercise of equitable discretion. The civil cases upon which Chevron Oil relied, Allen v. State Bd. of Elections, 393 U. S. 544 (1969), Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481 (1968), Reynolds v. Sims, 377 U. S. 533," }, { "docid": "4404975", "title": "", "text": "§ 1981 and § 1983 actions in most federal jurisdictions. Predictably, the question of whether Wilson and the new statutes of limitations resulting from the decision should be given retroactive effect commanded a good deal of attention in federal courts. In both Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), and in Saint Francis College v. Al-Khazraji, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987), the Supreme Court addressed the retroactivity question. Although the Court reached different results in the two cases, its analysis is highly illuminating. In Goodman, the Court of Appeals for the Third Circuit opined that Wilson mandated a change in the applicable statute of limitations used in § 1981 cases brought in Pennsylvania federal courts. Moreover, because there was no clear Third Circuit precedent at the time that the Goodman plaintiffs filed their complaint, the appellate court held that the new limitations period, determined pursuant to Wilson, should be applied retroactively. The effect of this decision was to shorten the limitations period from six to two years. The plaintiffs argued before the Supreme Court that the circuit court’s decision to require retroactive application was in error. In making their argument the plaintiffs relied upon the three-part balancing test established in Chevron Oil Co. v. Huson, 404 U.S. 97, 105-08, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971), which requires a court to determine (1) whether the decision sought to be applied retroactively established a new principle of law and overruled clear circuit precedent upon which litigants may have relied, (2) whether the underlying purpose behind the substantive change in the limitations period would be served by retroactive application, and (3) whether retroactive application would be equitable to the parties. The Supreme court disagreed with the plaintiffs’ contentions, holding that, because the law was unsettled as to the applicable statute of limitations at the time the plaintiffs filed their complaint in 1973 and because there was thus no clear precedent on which plaintiffs could have relied, the decision to give retroactive effect to Wilson and its progeny was" }, { "docid": "22700380", "title": "", "text": "declined to apply a decision specifying the applicable statute of limitations retroactively because doing so would bar a suit that, under controlling Circuit precedent, had been filed in a timely manner. We relied expressly on the analysis of Chevron Oil, holding that a decision identifying a new limitations period should be applied only prospectively where it overrules clearly established Circuit precedent, where retroactive application would be inconsistent with the purpose of the underlying statute, and where doing so would be “manifestly inequitable.” Saint Francis College, supra, at 608-609. Chevron Oil and Saint Francis College are based on fundamental notions of justified reliance and due process. They reflect a straightforward application of an earlier line of cases holding that it violates due process to apply a limitations period retroactively and thereby deprive a party arbitrarily of a right to be heard in court. See Wilson v. Iseminger, 185 U. S. 55, 62 (1902); Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U. S. 673, 681-682 (1930). Not surprisingly, then, the Court's decision in Chevron Oil and Saint Francis College not to apply new limitations periods retroactively generated no disagreement among Members of the Court: The opinion in Chevron Oil was joined by all but one Justice, who did not reach the retroactivity question; Saint Francis College was unanimous. Only last Term, eight sense rule that decisions specifying the applicable statute of limitations apply only prospectively. See American Trucking Assns., Inc. v. Smith, 496 U. S. 167 (1990). The question presented in American Trucking was whether an earlier decision of the Court — striking down as unconstitutional a particular state highway tax scheme — would apply retroactively. In the course of explaining why the ruling would not apply retroactively, the plurality opinion relied heavily on our statute of limitations cases: “When considering sions newly defining statutes of limitations, the Court has focused on the action taken in reliance on the old limitation period — usually, the filing of an action. Where a litigant filed a claim that would have been timely under the prior limitation period, the Court has held that the" }, { "docid": "22556330", "title": "", "text": "U. S. 473, 486, n. 16 (1981); Thorpe v. Housing Authority of Durham, 393 U. S. 268, 281 (1969); United States v. Schooner Peggy, 1 Cranch 103, 109 (1801). But Chevron Oil Co. v. Huson, 404 U. S. 97 (1971), advises that nonretroactivity is appropriate in certain defined circumstances. There the Court held that a decision specifying the applicable state statute of limitations in another context should not be applied retroactively because the decision overruled clear Circuit precedent on which the complaining party was entitled to rely, because the new limitations period had been occasioned by a change in the substantive law the purpose of which would not be served by retroactivity, and because retroactive application would be inequitable. Petitioners argue that the same considerations are present here. We disagree. It is true, as petitioners point out, that the Court of Appeals decision in this case overruled prior Third Circuit cases, Meyers v. Pennypack Woods Home Ownership Assn., 559 F. 2d 894 (1977); Davis v. United States Steel Supply, Div. of United States Steel Corp., 581 F. 2d 335, 338, 341, n. 8 (1978), each of which had refused to apply the Pennsylvania 2-year personal injury statute of limitations to the § 1981 claims involved in those cases. But until Meyers was decided in 1977, there had been no authoritative specification of which statute of limitations applied to an employee’s § 1981 claims, and hence no clear precedent on which petitioners could have relied when they filed their complaint in this case in 1973. In a later case, Al-Khazraji v. St. Francis College, 784 F. 2d 505, 512-514 (1986), the Court of Appeals refused to apply retroactively the same 2-year statute in an employment discrimination §1981 case because the case was filed when clear Circuit precedent specified a longer statute. Distinguishing its decision there from the case now before us, the Court of Appeals said: “In 1973, when the complaint was filed in the Goodman case, there was no established precedent in the Third Circuit to indicate the appropriate limitations period for Section 1981 claims.” 784 F. 2d, at 512." }, { "docid": "8100337", "title": "", "text": "purposes to actions arising under 42 U.S.C. Section 1981.” Id. at -, 107 S.Ct. at 2636, 96 L.Ed.2d at 600 (O’Connor, J., concurring in judgment and dissenting). There remains the difficult question, however, of whether any single statute selected by this court should be applied retroactively to bar the plaintiffs’ Section 1981 actions in the case sub judice. The Supreme Court in Saint Francis College, supra, agreed with the Third Circuit decision not to apply retroactively a newly-selected statute of limitations for Section 1981 claims. Id. — U.S. -, 107 S.Ct. at 2025, 95 L.Ed.2d at 588-589. The Supreme Court counseled that the analysis set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) should be used to determine whether a change from past precedent should be applied retroactively to bar a complaining party’s action. Saint Francis College, supra, — U.S. at -, 107 S.Ct. at 2025, 95 L.Ed.2d at 589. In Chevron Oil Co., the Supreme Court set forth three principles to be applied in determining whether a decision should be given retroactive applicability: 1) whether the decision to be applied non-retroactively established a new principle of law or overruled a clear past precedent on which the litigants may have relied; 2) whether the retroactive application of the new rule would be inconsistent with the purpose of the underlying substantive law; and, (3) whether the retroactive application would produce inequitable results. See Chevron Oil Co. at 106-107, 92 S.Ct. at 355. The court addressed each of these factors separately below. 1. Whether the Decision Establishes a New Principle of Law or Overrules a Clear Past Precedent on Which the Litigants May Have Relied The decision in question here is the court's determination of whether to apply Mississippi’s one-year statute of limitations to plaintiffs’ Section 1981 claims under Gates and Wilson. If this statute is applied, plaintiffs’ claims will clearly be time-barred because their complaint was not filed until September 29, 1983. As the court has previously ruled, the statute of limitations began to run on plaintiffs’ Section 1981 claims with the" }, { "docid": "22423963", "title": "", "text": "established, that the running of a statute of limitation may be suspended by causes not mentioned in the statute itself”). Statutes of limitations proceed upon the “presumption that claims are extinguished whenever they are not litigated in the proper forum within the prescribed period, and they take away all solid ground of complaint, because they rest on the negligence or laches of the party himself,” Hanger v. Abbott, 6 Wall. 532, 538 (1868); when “none of the reasons on which the statute is founded can possibly apply,” id., at 539-540, the federal courts have exercised equitable discretion to suspend the running of a limitations period in conformity with the “policy underlying [the] statute of limitations,” Burnett, supra, at 434. The author of Chevron Oil later explained: “[T]he mere fact that a federal statute providing for substan tive liability also sets a time limitation upon the institution of suit does not restrict the power of the federal courts to hold that the statute of limitations is tolled under certain circumstances not inconsistent with the legislative purpose.” American Pipe & Construction Co. v. Utah, 414 U. S. 538, 559 (1974) (Stewart, J.). When the federal courts have no equitable discretion, we have held a federal court has no authority to refuse to apply a law retroactively. See Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 379 (1981). The remainder of our “retroactivity” cases fit into a similar mold. In Saint Francis College v. Al-Khazraji, 481 U. S. 604 (1987), we once again recognized that “[t]he usual rule is that federal cases should be decided in accordance with the law existing at the time of decision,” id., at 608 (citing Gulf Offshore Co. v. Mobil Oil Corp., 453 U. S. 473, 486, n. 16 (1981); Thorpe v. Housing Authority of Durham, 393 U. S. 268, 281 (1969); United States v. Schooner Peggy, 1 Cranch 103, 110 (1801)), but found that Chevron Oil “counselled] against retroactive application of statute of limitations decisions in certain circumstances.” 481 U. S., at 608 (emphasis added). Without deciding the correct statute of limitations period ourselves," }, { "docid": "15044046", "title": "", "text": "however, argues that the federal statute of limitations period should not be applied in the instant case. An application of the federal statute of limitations to the instant case would entail retroactive application of a new rule, violating the standards established in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Under Chevron Oil, when a new statute of limitations period is established by the Supreme Court, it should be applied prospectively if “it overrules clearly established Circuit precedent on which the complaining party was entitled to rely, ... retroactive application would be inconsistent with the purpose of the underlying substantive statute, and ... such application would be manifestly inequitable,” St. Francis College v. Al-Khazraji, 481 U.S. 604, 608-09, 107 S.Ct. 2022, 2025-26, 95 L.Ed.2d 582 (1987). However, Chevron Oil was never even mentioned by the majority in Lampf. Their cursory treatment of a seemingly important precedent can only be explained by the decision in James B. Beam Distilling Company v. Georgia, — U.S. —, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), a case decided on the same day as Lampf. There, the Supreme Court ruled that “selective prospectivity” was contrary to the “principles of equality and stare decisis.” The Court stated that decisions may be either retroactively or prospectively applied, but the application must be uniform. Beam prevents lower courts from using Chevron Oil as they have in the past, by applying the equitable principles of Chevron Oil to decide whether a new statute of limitations handed down from the Supreme Court should work retroactively. Now, after Beam, lower courts must apply the statute of limitations adopted by the Supreme Court to all pending cases, unless the Court mandates a prospective application. This court stayed its decision in anticipation of the result of Lampf and now that the result is clear, it must be applied. In so doing, we follow Beam and apply the new federal statute of limitations for section 10(b) actions retroactively as it was applied by the Court in Lampf. In sum, we find plaintiff’s claims against defendants Kidder and" }, { "docid": "22390342", "title": "", "text": "v. Schooner Peggy, 1 Cranch 103, 110 (1801). But Chevron Oil Co. v. Huson, supra, counsels against retroactive application of statute of limitations decisions in certain circumstances. There, the Court held that its decision specifying the applicable state statute of limitations should be applied only prospectively because it overruled clearly established Circuit precedent on which the complaining party was entitled to rely, because retroactive application would be inconsistent with the pur pose of the underlying substantive statute, and because such application would be manifestly inequitable. The Court of Appeals found these same factors were present in this case and foreclosed retroactive application of its decision in Goodman. We perceive no good reason for not applying Chevron where Wilson has required a Court of Appeals to overrule its prior cases. Nor has petitioner persuaded us that there was any error in the application of Chevron in the circumstances existing in this case. II Section 1981 provides: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exac-tions of every kind, and to no other.” Although § 1981 does not itself use the word “race,” the Court has construed the section to forbid all “racial” discrimination in the making of private as well as public contracts. Runyon v. McCrary, 427 U. S. 160, 168, 174-175 (1976). Petitioner college, although a private institution, was therefore subject to this statutory command. There is no disagreement among the parties on these propositions. The issue is whether respondent has alleged racial discrimination within the meaning of § 1981. Petitioners contend that respondent is a Caucasian and cannot allege the kind of discrimination § 1981 forbids. Con-cededly, McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273 (1976), held that white persons could maintain a § 1981 suit; but" } ]

[ { "docid": "8594815", "title": "", "text": "a hypothetical licensee would have anticipated an increase in sales of collateral unpatented items because of the patented device, the patentee should be compensated accordingly. Cf. Trans-World Manufacturing Co., 750 F.2d at 1568, 224 USPQ at 269-70 (increased sales of unpatented items may be relevant in determining reasonable royalty). That correlation was shown to exist in this case. Because Dura did not show how many, if any, of the patented devices were sold alone without wheels and axles, the special master could not have apportioned the infringing sales if such apportioning had been appropriate. The special master correctly included unpatented items in the royalty base. Having shown each of the elements for lost profits, TWM established that in all reasonable probability it would have made the sales that Dura made. The special master therefore correctly included the un-patented wheels and axles in her lost profits determination. Lost Profits Dura says TWM should get no lost profits because it did not establish absence of acceptable non-infringing substitutes, which, says Dura, need not possess all the beneficial characteristics of the patented device. Alternatively, Dura says the concession of a TWM witness (that competition existed in 30% of the market) means there must have been non-infringing substitutes in at least that portion of the market. Dura’s arguments are without merit. As above indicated, the special master found many facts clearly establishing absence of acceptable substitutes. Dura has failed to show that any of the many findings on which the magistrate’s no-substitutes determination was based was clearly erroneous. Mere existence of a competing device does not make that device an acceptable substitute. The special master committed no error in noting that none of the alleged substitutes had all beneficial characteristics of the patented device. See Central Soya Co. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1579, 220 USPQ 490, 494 (Fed. Cir.1983). That finding supported the determination that there were no acceptable substitutes. “A product lacking the advantages of that patented can hardly be termed a substitute ‘acceptable’ to the customer who wants those advantages.” Panduit Corp., 575 F.2d at 1162, 197" } ]

[ { "docid": "12951918", "title": "", "text": "the forty-four infringing sales. Because we find that the district court applied an incorrect standard of law which caused it to calculate damages that were clearly erroneous, we need not examine the reasonable royalty rate. Furthermore, we must decide whether the district court abused its discretion in setting the prejudgment interest rate. Lost Profit Damages 1. The Assessment of Damages by the District Court. A court shall award damages adequate to compensate the patentee for infringement, but in no event less than a reasonable royalty. Generally, in determining whether the infringing sales caused Lantech to lose profits the district court must have concluded (1) that the patent owner would have made the sale but for the infringement, i.e., causation existed, and (2) that proper evidence supporting the computation of lost profits was presented at trial. The only specific test approved by this Court in determining whether the infringement caused profits to be lost was introduced in Panduit, 575 F.2d at 1156, 197 USPQ at 730. The Panduit test has four requirements. To obtain damages for lost profits, the patentee must prove (1) a demand for the patented product, (2) the marketing and manufacturing capability to exploit demand, (3) an absence of acceptable noninfringing substitutes, and (4) the amount of profit the patentee would have made. In the trial of this case, the district court found that lost profits should not be awarded on all infringing sales because the third Panduit element was not satisfied; i.e., that Lantech failed to show that all of Kaufman’s infringing customers would not have accepted a noninfringing substitute. In arriving at its decision the district court labeled the question of acceptability of non-infringing substitutes as “subjective and highly individualized”. The district court found that Lantech met its burden of proof for two customers accounting for only eight machine sales out of forty-four infringing sales. This finding was based on the fact that Lantech presented specific evidence on the absence of acceptable noninfringing substitutes only for those two customers. The district court found that Lantech did not present evidence indicating that each of the remaining individual" }, { "docid": "343296", "title": "", "text": "owner must demonstrate “a causal connection between the infringement and its loss of profits.” BIC Leisure Prods., Inc. v. Windsurfing Int’l, Inc., 1 F.3d 1214, 1218 (Fed.Cir.1993). In other words, “the burden rests on the patentee to show a reasonable probability that ‘but for’ the infringing activity, the patentee would have made the infringer’s sales.” Crystal Semiconductor, 246 F.3d at 1353. Once the patent owner establishes a reasonable probability of “but for” causation, “the burden then shifts to the accused infringer to show that [the patent owner’s claim] is unreasonable for some or all of the lost sales.” Grain Processing Corp. v. American Maize-Products Co., 185 F.3d 1341, 1349 (Fed.Cir.1999). Case law has developed two principal methods for a patentee to meet its burden of establishing “but for” causation. The first method derives from the seminal decision in Panduit. In order to obtain lost profits damages under the Panduit test, “a patent owner must prove: (1) demand for the patented product, (2) absence of acceptable non-infringing substitutes, (3) his manufacturing and marketing capability to exploit the demand, and (4) the amount of the profit he would have made.” Id. at 1156. Upon proof of these four elements, a presumption of “but for” causation is accorded the patent holder with respect to all of the alleged infringer’s sales. See State Industries, 883 F.2d at 1578; 7 Chisum on Patents § 20.03[1]. A literal application of the Panduit test is inappropriate, however, in situations involving multiple competitors, such as in the present case. As an initial matter, the presumption that all of the infringer’s sales would have accrued to the patentee absent the infringement is unreasonable in the multi-competitor landscape, where presumably some portion of the infringer’s sales would have accrued to competitors other than the patent holder itself. Cf. State Industries, Inc. v. Mor-Flo Industries, Inc., 883 F.2d 1573, 1578 (Fed. Cir.1989). Moreover, the presence of multiple competitors makes proof of the second Panduit factor — absence of acceptable non-infringing alternatives — impossible, since in the ordinary multi-competitor situation the patentee’s competitors by definition engage in the sale of non-infringing alternatives." }, { "docid": "23409567", "title": "", "text": "USPQ 1185, 1188 (1983); Del Mar Avionics, Inc. v. Quinton Instrument Co., 836 F.2d 1320, 1326, 5 USPQ2d 1255,1260 (Fed.Cir.1987). But the floor for a damage award is no less than a reasonable royalty, Seattle Box Co. v. Industrial Crating & Packing Inc., 756 F.2d 1574, 1581, 225 USPQ 357, 363 (Fed.Cir.1985), and the award may be split between lost profits as actual damages to the extent they are proven and a reasonable royalty for the remainder. See TWM Mfg. Co. v. Dura Corp., 789 F.2d 895, 898, 229 USPQ 525, 526 (Fed.Cir.1986). A. To get lost profits as actual damages, the patent owner must demonstrate that there was a reasonable probability that, but for the infringement, it would have made the infringer’s sales. Water Technologies Corp. v. Calco Ltd., 850 F.2d 660, 671, 7 USPQ2d 1097, 1106 (Fed.Cir.1988); Del Mar, 836 F.2d at 1326, 5 USPQ2d at 1260; see also Bio-Rad Laboratories v. Nicolet Instrument Corp., 739 F.2d 604, 616, 222 USPQ 654, 664 (Fed.Cir.1984) (amount of lost profits may not be speculative). But “[t]he patent holder does not need to negate all possibilities that a purchaser might have bought a different product or might have foregone the purchase altogether.” Paper Converting Mach. Co. v. Magna-Graphics Corp., 745 F.2d 11, 21, 223 USPQ 591, 598 (Fed.Cir.1984). A standard way of proving lost profits, first announced in Panduit Corp. v. Stahlin Bros. Fibre Works, 575 F.2d 1152, 1156, 197 USPQ 726, 730 (6th Cir.1978), is for the patent owner to prove: “(1) demand for the patented product, (2) absence of acceptable noninfringing substitutes, (3) his manufacturing and marketing capability to exploit the demand, and (4) the amount of the profit he would have made.” The district court relied heavily on this test and we have accepted it as a nonexclusive standard for determining lost profits. Carella v. Starlight Archery & Pro Line Co., 804 F.2d 135, 141, 231 USPQ 644, 648 (Fed.Cir.), on rehearing, 1 USPQ2d 1209 (Fed.Cir.1986); Bio-Rad, 739 F.2d at 616, 222 USPQ at 663; cf. Ryco, Inc. v. Ag-Bag Corp., 857 F.2d 1418, 1427, 8 USPQ2d 1323," }, { "docid": "2313758", "title": "", "text": "entitling them to judgment as a matter of law and, alternatively, that the jury was not properly instructed on that requirement. Because the Court finds that the jury was properly instructed on the law and the evidence supported a finding by reasonable probability of the amount of lost profits determined by the jury, the verdict must be affirmed. The Court in Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152, 1156 (6th Cir.1978), set forth the following formula for the computation of lost profits in a patent infringement case: There is no dispute in this case concerning elements 1, 3 and 4. To obtain as damages the profits on sales he would have made absent the infringement, ie., the sales made by the infringer, a patent owner must prove: (1) demand for the patented product, (2) absence of acceptable noninfringing substitutes, (3) his manufacturing and marketing capability to exploit the demand, and (4) the amount of the profit he would have made. The second element of the Panduit test has been modified under certain circumstances to recognize that a plaintiff may recover lost profits even though it admits the presence of acceptable noninfringing substitutes by proving instead its probable market share of the infringing sales. This alternative approach was recently discussed in BIC Leisure Products, Inc. v. Windsurfing International, Inc., 1 F.3d 1214, 1219 (Fed.Cir. 1993); This court has held that a patent owner may satisfy the second Panduit element by substituting proof of its market share for proof of the absence of acceptable substitutes. This market share approach allows a patentee to recover lost profits, despite the presence of acceptable, noninfringing substitutes, because it nevertheless can prove with reasonable probability sales it would have made “but for” the infringement. (Citations omitted.) The instructions provided to the jury were entirely consistent with the law on proof of lost profits through the market share approach. In relevant part the jury was instructed as follows: A factual basis for the lost profits caused by infringement may exist if you find that “but for” the infringement the patent owner would have" }, { "docid": "4347879", "title": "", "text": "that the patent damage judgment must be vacated, but we remand the case for redetermination of lost profits. A lost profits award requires (1) showing that the patent owner would have made the sale but for the infringement, i.e., causation existed, and (2) proper evidence for the computation of the loss of profits. King Instrument Corp. v. Otari Corp., 767 F.2d 853, 863, 226 USPQ 402, 409 (Fed.Cir.1985). Evidence that shows a reasonable probability that the patent owner would have made the infringing sales made by the infringer will suffice. Id. at 864, 226 USPQ at 409-10; Lam, Inc. v. Johns-Manville Corp., 718 F.2d 1056, 1065, 219 USPQ 670, 675 (Fed.Cir.1983). Thus, the patent owner need not prove causation as an absolute certainty. One way to establish causation is the four-part test applied in Panduit Corp. v. Stahlin Bros. Fibre Works, 575 F.2d 1152, 1156, 197 USPQ 726, 729-30 (6th Cir.1978). To recover under that test, the patent owner must prove (1) a demand for the patented product, (2) an absence of acceptable noninfringing substitutes, (3) the manufacturing and marketing capability to exploit the demand, and (4) the amount of profit the patent owner would havé made. See Kaufman Co. v. Lantech, Inc., 926 F.2d 1136, 1140, 17 USPQ2d 1828, 1831 (Fed.Cir.1991). Here, the jury was properly instructed on the Panduit test. Gencor argues, however, that the jury’s presumed finding that there was an absence of acceptable nonin-fringing substitutes is not supported by substantial evidence. We disagree. It is true that the record establishes a competitive market for asphalt plants, with parallel flow plants competing for sales with counterflow plants. However, the mere existence of a competing device does not necessarily make that device an acceptable substitute. TWM Mfg. Co., Inc. v. Dura Corp., 789 F.2d 895, 901, 229 USPQ 525, 529 (Fed.Cir.1986). A product on the market which lacks the advantages of the patented product can hardly be termed a substitute acceptable to the customer who wants those advantages. Id. See also Panduit, 575 F.2d at 1162, 197 USPQ at 734. Accordingly, if purchasers are motivated to purchase because" }, { "docid": "15136639", "title": "", "text": "This Court is free to use its discretion in choosing a method for calculating damages as long as the measure of damages is just and reasonable (Korn Corp. v. Wilco Marsh Buggies & Draglines, Inc., 761 F.2d 649, 653-54 (Fed.Cir.1985).) Because the computation of damages is not always amenable to precise determination, it is acceptable if the evidence shows the extent of damages as a matter of just and reasonable inferences, even though the result is only approximate (Paper Converting Mach. Co. v. Magna-Graphics Corp., 745 F.2d 11, 22 (Fed.Cir.1984)). Any doubt as to the correctness of a damages award is to be resolved against the infringer (State Indus., 883 F.2d at 1577). If the patent owner is able to establish a reasonable probability that it would have made only some of the infringer’s sales but for the infringement, the damages award may be in the amount of lost profits to the extent so established plus a reasonable royalty for the remainder of the sales (id.). Damages — Lost Profits 4. It is unnecessary to prove lost profits with absolute certainty. It suffices to prove a reasonable probability that Glaver-bel-Fosbel would have made the sales of the ceramic welding powder and would have provided the ceramic welding services (one of the two patents is for the powder and the other for the method of repair). There is no need to negate all possibilities that a purchaser might have bought a different product or might have forgone the purchase altogether (State Indus., id.). 5. Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir.1978), cited with approval in various Federal Circuit cases (see, e.g., Rite-Rite Corp. v. Kelley Co., 56 F.3d 1538, 1545 (Fed.Cir.1995) (en banc)), identifies four factors to be considered (if and when present) in a lost profits analysis. Those four factors are (a) a demand for the patented product or method, (b) the absence of acceptable noninfringing substitutes, (c) the manufacturing and marketing capability of the patent owner to exploit the demand and (d) the amount of profit the patent owner would have made on" }, { "docid": "2313757", "title": "", "text": "in light of the failure of defendants to come forth with any evidence that any of its products did not infringe. Defendants also challenge the evidence on the grounds that Dr. Deibel should have been excluded based upon his lack of expertise. The Court affirms its ruling that Dr. Deibel’s background and experience are sufficient to qualify him to put forth an opinion concerning whether the steps of the patent were performed in the production of defendants’ products identified on exhibit 1. There is little question that plaintiffs expert, Dr. Stewart, relied upon the items on exhibit 1 for the calculation of damages. Accordingly, the Court finds that the evidence was ample to support the jury’s determination that the products on exhibit 1 were infringing and that the damages were calculated based upon the sales of those infringing products. Defendants’ second challenge to the damage verdict concerns the need to demonstrate absence of acceptable noninfringing substitutes as an element of a claim for lost profits. Defendants assert they demonstrated the availability of a noninfringing substitute entitling them to judgment as a matter of law and, alternatively, that the jury was not properly instructed on that requirement. Because the Court finds that the jury was properly instructed on the law and the evidence supported a finding by reasonable probability of the amount of lost profits determined by the jury, the verdict must be affirmed. The Court in Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152, 1156 (6th Cir.1978), set forth the following formula for the computation of lost profits in a patent infringement case: There is no dispute in this case concerning elements 1, 3 and 4. To obtain as damages the profits on sales he would have made absent the infringement, ie., the sales made by the infringer, a patent owner must prove: (1) demand for the patented product, (2) absence of acceptable noninfringing substitutes, (3) his manufacturing and marketing capability to exploit the demand, and (4) the amount of the profit he would have made. The second element of the Panduit test has been modified under" }, { "docid": "9788769", "title": "", "text": "have destroyed any such documents. {See D.I. 214, ex. 7 at 498-550, 504) Because there are disputed issues of material fact as to whether a presumption of laches exist and, if not, whether Philips can prove the two elements of laches by a preponderance of the evidence, the court denies Philips’s motion for partial summary judgment on the affirmative defense of laches. H. Philips’s Motion for Partial Summary Judgment on Izumi’s Claim for Lost Profits Damages The measure of damages is an amount which will compensate the patent owner for the pecuniary loss sustained because of the infringement. 35 U.S.C. § 284. The floor for a damage award is no less than a reasonable royalty, Seattle Box Co. v. Indus. Crating & Packing Inc., 756 F.2d 1574, 1581 (Fed.Cir.1985), and the award may be split between lost profits as actual damages to the extent they are proven and a reasonable royalty for the remainder. See TWM Mfg. Co. v. Dura Corp., 789 F.2d 895, 898 (Fed.Cir.1986). To recover lost profits damages as actual damages, the patentee must show a reasonable probability that, “but for” the infringement, it would have made the sales that were made by the infringer. Rite-Hite Corp. v. Kelley Co., Inc., 56 F.3d 1538, 1545 (Fed.Cir.1995) (citations omitted). The Federal Circuit has adopted a four-factor test, first articulated in Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir.1978), as a standard, non-exclusive method for a pat-entee to establish entitlement to lost profits damages. Under the Pandtdt test, the patentee must prove: (1) demand for the patented product; (2) absence of acceptable non-infringing substitutes; (3) manufacturing and marketing capability to exploit the demand; and (4) the amount of the profit it would have made. Id. A patentee need not negate every possibility that a purchaser might have bought a product other than its own. Rite-Hite, 56 F.3d at 1545. On the contrary, so long as the patentee establishes each of the Panduit factors, the court may reasonably infer that the claimed lost profits were caused by the infringing sales. Id. Thus, by satisfying the" }, { "docid": "15136644", "title": "", "text": "share, or a unique product that competitors are not able to offer suffices to demonstrate market power. While each of these three factors might help to give market power to a seller, it is also possible that a seller in these situations will have no market power: for example, a patent holder has no market poiuer in any relevant sense if there are close substitutes for the patented product. It follows as a logical matter that if a patentee does possess market power (monopoly power), there cannot be close substitutes for the patented product. And Northlake has indeed stated (it has actually conceded in its pleading, albeit while looking in a different direction) that there is monopoly power, a concession that can be used against Northlake under Fed. R.Evid. 801(d)(2)(A). 10. Accordingly the lost profits analysis applies to all of the sales made by Northlake to its customers with whom Fosbel had any contact before the North-lake infringement. That analysis applies without any ratable reduction to take into account any noninfringing ceramic welding. 11. Based upon the undisputed testimony, Glaverbel-Fosbel had the marketing and manufacturing capability for a 10% to 20% increase in sales, and Glaverbel-Fosbel’s expert Dr. Koppel took the cost of new machinery into consideration in his calculations. Glaverbel-Fosbel had the full marketing capability to have made all of the sales that Northlake made, if North-lake had in fact not made them. 12. Panduit’s fourth factor calls for a calculation of the amount of the additional, or incremental, profit that Glaverbel-Fos-bel would have made if Northlake had not infringed. That calculation is made by (1) determining the amount of additional sales Glaverbel-Fosbel would have made and (2) subtracting from it the additional costs Glaverbel-Fosbel would have incurred in order to make the additional sales. That incremental profit approach is well established in patent damages cases (Paper Converting, 745 F.2d at 22). 13. This Court has approved Dr. Koppel’s expert report with the modifications reflected in the- Findings. It concludes that the lost profits award for Glaverbel-Fosbel is $694,231 (see Finding 33). Damages — Reasonable Royalty 14. “Reasonable royalty”" }, { "docid": "22473644", "title": "", "text": "meet the full demand. 5 D. Chisum, supra, § 20.03[1], at 20-72. Our precedent is in agreement that a lost profits award is appropriate only if WTC/WPCS proved that it would have made sales of its water purifier product “but for” Calco’s and Gartner’s infringement, i.e., that causation existed. King Instrument Corp. v. Otari Corp., 767 F.2d 853, 864, 226 USPQ 402, 410 (Fed.Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1197, 89 L.Ed.2d 312 (1986); Kori Corp. v. Wilco Marsh Buggies & Draglines, Inc., 761 F.2d 649, 653, 225 USPQ 985, 987 (Fed.Cir.), cert. denied, 474 U.S. 902, 106 S.Ct. 230, 88 L.Ed.2d 229 (1985). While damages are to be proved, not presumed, a patent owner need not demonstrate causation with certainty. A reasonable probability that the patent owner would have made some or all of the sales is sufficient. See, e.g., King Instrument, 767 F.2d at 864, 226 USPQ at 409-10. Where a patent owner maintains that it lost sales equal in quantity to the infringing sales, our precedent has approved generally the four-part test set forth in Panduit Corp. v. Stahlin Brothers Fibre Works, Inc., 575 F.2d 1152, 197 USPQ 726 (6th Cir.1978): To obtain as damages the profits on sales he would have made absent the infringement, i.e., the sales made by the infringer, a patent owner must prove: (1) demand for the patented product, (2) absence of acceptable noninfringing substitutes, (3) his manufacturing and marketing capability to exploit the demand, and (4) the amount of the profit he would have made. Id. at 1156, 197 USPQ at 729-30 (cited with approval in Carella v. Starlight Archery & Pro Line Co., 804 F.2d 135,141, 231 USPQ 644, 648 (Fed.Cir.1986), and King Instrument, 767 F.2d at 864 n. 9, 226 USPQ at 409 n. 9). The Panduit test in part (2) embodies the idea stated in other precedent that lost profits for all sales made by an infringer are easier to obtain where there are only two suppliers in the market, the infringer and the patent owner. Kori, 761 F.2d at 653, 225 USPQ at 987 (“when" }, { "docid": "10304726", "title": "", "text": "has been shown through Brewco’s sales brochure for the Add-a-Tower which instructs as to the Add-a-Tower’s sole use. Active inducement is also shown by Brewco’s sales of the Add-a-Tower. Insofar as there can be no other use but an infringing use, the reasonable inference may be drawn that actual infringement by the purchasers of the Add-a-Tower has occurred. The defendants can only be held liable for the Add-a-Tower units actually sold, since manufacture of the unit is not sufficient to constitute infringement. Brewer is personally liable, along with his corporation, for the infringements in this case. He is the President and principal stockholder of the corporation and is responsible for its total management and operation. Brewer personally designed all three machines and the Add-a-Tower unit. Brewco manufactures the products that Brewer designs. “... Section 271(b) ... may include liability of corporate officials who actively aid and abet their corporations infringements.” Power Lift, Inc., supra. The plaintiffs’ expert’s calculation of lost profits, derived from the total gross profits figures found in Chief’s prospectus is an acceptable means of approximating the damages suffered by the plaintiffs. The incremental income approach to the computation of lost profits is well established in the law relating to patent damages [citations omitted]. The approach recognizes that it does not cost as much to produce unit N — 1 if the first N (or fewer) units produced have already paid the fixed costs. Thus fixed costs—those costs which do not vary with increases in production such as management salaries, property taxes, and insurance—are excluded when determining profits. Paper Converting Machine Co. v. Magna-Graphics Corp., 745 F.2d 11, 22, 223 U.S.P.Q. 591 (Fed.Cir.1984). The plaintiffs have shown entitlement to an award of lost profits in this case insofar as they have shown a reasonable probability that, in the absence of Brewer’s infringement, Chief would have sold the additional machines. See Bio-Rad Laboratories, Inc. v. Nicolet Instrument Corp., 739 F.2d 604, 222 U.S.P.Q. 654 (Fed.Cir.) cert. denied 469 U.S. 1038, 105 S.Ct. 516, 83 L.Ed.2d 405 (1984). Chief had the manufacturing and marketing capabilities to accommodate such an increase" }, { "docid": "14005766", "title": "", "text": "his testimony. With regard to marketing and sales capacity, Dr. Stewart reviewed the territories covered by the defendant’s sales agents, and the relevant records and maps, and concluded that the “Osteonics distributors (sales agents) were covering the same territories that the IOI agents were covering.” (Tr. at 457-458; Plaintiffs Exh. 817A). Zarnowski testified that Osteonics had sold an average of 33,000 hip implants each year, and that it had the sales capacity to sell an additional 10,000 implants in 1990. With some extra effort, Zarnowski testified that Osteonics could have sold 15,000 more hip implants that it did each year. The defendant’s contentions that Osteonics did not have the marketing capability to meet the demand, because they did not have the relationship with the surgeons necessary to make the sale, are rejected. The Court finds that, with some effort, the plaintiff could have developed those relationships. For the reasons stated above, the Court finds that Osteonics had the capacity to manufacture and market the demand for the patented product, as measured by the total sales of the Omniflex and APR II. (4) Panduit Factor Four: The Amount of Profit Osteonics Would Have Made Both Osteonics and Intermedies agree that in determining the amount of Osteonics’s lost profits resulting from the infringing sales, an incremental profits calculation is the proper measure of profit loss. (Tr. 3174-75). Incremental profits are the difference between gross revenues resulting from regaining the sales lost due to infringement and the incremental cost of making those sales. This measure of profit loss is appropriate when the patentee’s fixed costs do not rise, or only slightly increase, relative to increases in production. State Indus., 883 F.2d at 1580 (citing Paper Converting Mach. Co. v. Magna-Graphics Corp., 745 F.2d 11, 22 (Fed.Cir.1984)). Dr. Stewart calculated the plaintiffs incremental lost profits for the period January 1, 1990 until March 31, 1993. His methodology first involved converting sales of the APR II and its components into lost sales of the Omniflex and its components. Dr. Stewart and his staff accomplished this conversion by first reviewing several thousand APR II delivery tickets," }, { "docid": "2026662", "title": "", "text": "does not have “projections” within the literal language of claim 15. The court also found, however, that instead of projections, the two-wheel machine has plates welded to the shaft to form an auger and that the auger performs the same function as the projections of forcing silage to the rotor. Again, Ryco has not shown any error in the court's finding that the two-wheel machine infringes the claim under the doctrine of equivalents. Ryco has not separately argued that dependent claim 16 is not infringed. Accordingly, we affirm the district court’s finding that Ryco’s two-wheel and four-wheel bagging machines infringe claims 15 and 16. 3. Lost Profits In determining whether Ag-Bag is entitled to its lost profits under 35 U.S.C. § 284 as damages for Ryco’s infringing sales, the district court followed the four-part test outlined in Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152, 1156, 197 USPQ 726, 729-30 (6th Cir.1978), which this court has approved as one method of calculating lost profits. See e.g., Gyromat Corp. v. Champion Spark Plug Co., 735 F.2d 549, 552, 222 USPQ 4, 6 (Fed.Cir.1984). The guidelines set forth in Panduit generally provide that to obtain lost profits, the patent owner must prove: (1) a demand for the patented product during the period of infringing sales; (2) an absence of acceptable noninfringing substitutes; (3) the patent owner had the ability to meet the demand for the products covered by the patent; and (4) the amount of profit the patent owner would have made. The court held that Ag-Bag had clearly established the first three parts of the Panduit formulation, but not the fourth, i.e., Ag-Bag had not proved with reasonable certainty the profit it would have made. Ag-Bag’s sales dropped from 168 machines in 1984 to seventy-two in 1985 and fifty-three in 1986. Based on the testimony of Ag-Bag’s expert, the court found that this decrease in sales was in uncertain part due to a slump in agricultural economy. This seems to us to be irrelevant to Ag-Bag’s lost profit due to Ryco’s infringing sales. During the relevant time period," }, { "docid": "23104749", "title": "", "text": "a “reasonable royalty,” SKD used the same purported lost profit figure translated into a percent of Helena’s sales to yield a reasonable royalty figure of 48%. The district court found SKD’s profit figures incredible in either context. On appeal, SKD simplifies matters by merely appealing the issue of damages based on its purported actual loss of profits. IV LOST PROFITS DAMAGES The district court found that SKD failed to establish by a preponderance of the evidence all of the requirements for a damage award based on SKD’s lost profits. SKD contends that the district court committed clear error in making subsidiary as well as the ultimate findings. We cannot agree. SKD sought to prove damages under the standard set forth in Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152, 1156, 197 USPQ 726, 730 (6th Cir.1978), a permissible method by which a patent owner may prove damages based on lost profits. Carella v. Starlight Archery & Pro Line Co., 804 F.2d 135, 141, 231 USPQ 644, 648 (Fed.Cir.1986). Under Panduit, a patentee must show that but for the infringing acts, the patent owner would have made the sales and would have made a certain level of profit. Yar-way Corp. v. Eur-Control USA, Inc., 775 F.2d 268, 275, 227 USPQ 352, 357 (Fed.Cir.1985). Four elements must be proved: (1) a demand for the patented product, (2) the absence of an acceptable, non-infringing substitute for the patented product, (3) the patent owner’s manufacturing and marketing capability to exploit the demand for the patented product, and (4) the amount of profit the patent owner would have expected to make if the patent owner had made the infringer’s sales. Radio Steel & Mfg. Co. v. MTD Prods., Inc., 788 F.2d 1554, 1555, 229 USPQ 431, 432 (Fed.Cir.1986) (citing Panduit, 575 F.2d at 1156, 197 USPQ at 730). Accordingly, a patentee is not entitled to lost profits if the patentee fails to establish any of the above requirements. Except for demand, the trial court found that SKD failed to prove each of the above requirements. SKD asserts that these findings are clearly" }, { "docid": "343295", "title": "", "text": "on the ground that Fuji failed to prove the ab sence of non-infringing alternatives under Panduit Corp. v. Stahlin Bros. Fibre Works, 575 F.2d 1152 (6th Cir.1978). A patent holder who has established liability for infringement is entitled to damages “adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer ...” 35 U.S.C. § 284. A standard method of establishing patent damages is for the patentee to demonstrate “the profits on sales it would have made absent the defendant’s infringement.” Panduit, 575 F.2d at 1156. “Lost profit” damages of this kind, however, must be proved — they are never presumed. See, e.g., Kaufman Co., Inc. v. Lantech, Inc., 926 F.2d 1136, 1141 (Fed.Cir.1991). If the patent owner cannot demonstrate its entitlement to lost profits, “only a reasonable royalty may be recovered.” 8 Lipsoomb’s Walker on Patents § 27:24 (1989); Crystal Semiconductor Corp. v. TriTech Microelectronics Int’l, Inc., 246 F.3d 1336, 1353 (Fed.Cir.2001). In order to recover lost profits, a patent owner must demonstrate “a causal connection between the infringement and its loss of profits.” BIC Leisure Prods., Inc. v. Windsurfing Int’l, Inc., 1 F.3d 1214, 1218 (Fed.Cir.1993). In other words, “the burden rests on the patentee to show a reasonable probability that ‘but for’ the infringing activity, the patentee would have made the infringer’s sales.” Crystal Semiconductor, 246 F.3d at 1353. Once the patent owner establishes a reasonable probability of “but for” causation, “the burden then shifts to the accused infringer to show that [the patent owner’s claim] is unreasonable for some or all of the lost sales.” Grain Processing Corp. v. American Maize-Products Co., 185 F.3d 1341, 1349 (Fed.Cir.1999). Case law has developed two principal methods for a patentee to meet its burden of establishing “but for” causation. The first method derives from the seminal decision in Panduit. In order to obtain lost profits damages under the Panduit test, “a patent owner must prove: (1) demand for the patented product, (2) absence of acceptable non-infringing substitutes, (3) his manufacturing and marketing capability to exploit" }, { "docid": "22082894", "title": "", "text": "1260; see State Indus., Inc. v. Mor-Flo Indus., Inc., 883 F.2d 1573, 1577, 12 USPQ2d 1026, 1028 (Fed.Cir.1989), cert. denied, 493 U.S. 1022, 110 S.Ct. 725, 107 L.Ed.2d 744 (1990) (award of damages may be split between lost profits as actual damages to the extent they are proven and a reasonable royalty for the remainder). To recover lost profits damages, the patentee must show a reasonable probability that, “but for” the infringement, it would have made the sales that were made by the infringer. Id.; King Instrument Corp. v. Otari Corp., 767 F.2d 853, 863, 226 USPQ 402, 409 (Fed.Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1197, 89 L.Ed.2d 312 (1986). Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152, 197 USPQ 726 (6th Cir.1978), articulated a four-factor test that has since been accepted as a useful, but non-exclusive, way for a patentee to prove entitlement to lost profits damages. State Indus., 883 F.2d at 1577, 12 USPQ2d at 1028. The Panduit test requires that a patentee establish: (1) demand for the patented product; (2) absence of acceptable non-infringing substitutes; (3) manufacturing and marketing capability to exploit the demand; and (4) the amount of the profit it would have made. Panduit, 575 F.2d at 1156, 197 USPQ at 730. A showing under Panduit permits a court to reasonably infer that the lost profits claimed were in fact caused by the infringing sales, thus establishing a patentee’s prima facie case with respect to “but for” causation. Kaufman Co. v. Lantech, Inc., 926 F.2d 1136, 1141, 17 USPQ2d 1828, 1831 (Fed.Cir.1991). A patentee need not negate every possibility that the purchaser might not have purchased a product other than its own, absent the infringement. Id. The patentee need only show that there was a reasonable probability that the sales would have been made “but for” the infringement. Id. \"When the patentee establishes the reasonableness of this inference, e.g., by satisfying the Panduit test, it has sustained the burden of proving entitlement to lost profits due to the infringing sales. Id. at 1141, 17 USPQ2d at 1832. The burden then" }, { "docid": "14005741", "title": "", "text": "owner and infring-ers were the only suppliers of the patented product, it is reasonable to infer that the patent owner would have made the sales made by the infringer.” Del Mar, 836 F.2d at 1327 (citing Lam, 718 F.2d at 1065). The generally accepted, though not exclusive, manner that a patentee can establish “but for” causation entitling it to lost profits, is by meeting the four-factor test enunciated by the Sixth Circuit in Panduit Corp. v. Stahlin Bros., 575 F.2d 1152 (6th Cir.1978). See Rite-Hite, 56 F.3d at 1545-46, 1548; Kearns, 32 F.3d at 1551. The “Panduit test” requires that the patentee establish the following four factors: (1) demand for the patented product; (2) the absence of acceptable non-infringing substitutes; (3) the patent owner’s manufacturing and marketing capability to exploit the demand; and (4) the amount of profit the patent owner would have made Rite-Hite, 56 F.3d at 1545-46; Kearns, 32 F.3d at 1551 (citing Panduit, 575 F.2d at 1156). Satisfying the Panduit test “permits a court to reasonably infer that the lost profits claimed were in fact caused by the infringing sales, thus establishing a patentee’s prima facie case with respect to ‘but for’ causation.” Rite-Hite, 56 F.3d at 1545. The burden then shifts to the infringer to show that “the inference is unreasonable for some or all of the lost sales.” Id. Finally, the Federal Circuit recently explained in Rite-Hite that the “but for” test for compensability of damages must be read in light of the “reasonable limits of liability” imposed on damages by the law. Id. at 1546-47. These limits include reasonable, objectively foreseeable damages. Accordingly, when deriving lost sales due to infringement, the court can compensate the plaintiff for “a particular injury that was or should have been reasonably foreseeable by an infringing competitor in the relevant market,” absent a persuasive reason to the contrary. Id. (holding that lost sales of a patentee’s product which directly competed with the infringing product but which was not covered by the infringed patent, was a reasonably foreseeable injury and clearly compensable). Osteonics seeks lost profit damages for the time" }, { "docid": "14005740", "title": "", "text": "761 F.2d 649, 655 (Fed.Cir.), cert. denied, 474 U.S. 902, 106 S.Ct. 230, 88 L.Ed.2d 229 (1985) (citing Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250-51, 75 L.Ed. 544 (1931)); see also Beatrice Foods Co. v. New England Printing and Lithographing Co., 899 F.2d 1171, 1175-76 (Fed.Cir.1990) (citing cases), and “[w]hen the amount of the damages cannot be ascertained with precision, any doubts are resolved against the infringer.” Del Mar, 836 F.2d at 1327; Kaufman Co., Inc. v. Lantech, Inc., 926 F.2d 1136, 1141 (Fed.Cir.1991) (both citing Lam, Inc. v. Johns Manville Corp., 718 F.2d 1056, 1065 (Fed.Cir.1983)). Further, the patentee is not required to negate “every possibility” that the purchaser might not have purchased a product other than the patentee’s, absent the infringement. Rite-Hite, 56 F.3d at 1545-46; Minnesota Mining, 976 F.2d at 1577. The patentee must, instead, only show that there was a reasonable probability that the sales would have been made, “but for” the infringement. Rite-Hite, 56 F.3d at 1545-46. Indeed, “when the patent owner and infring-ers were the only suppliers of the patented product, it is reasonable to infer that the patent owner would have made the sales made by the infringer.” Del Mar, 836 F.2d at 1327 (citing Lam, 718 F.2d at 1065). The generally accepted, though not exclusive, manner that a patentee can establish “but for” causation entitling it to lost profits, is by meeting the four-factor test enunciated by the Sixth Circuit in Panduit Corp. v. Stahlin Bros., 575 F.2d 1152 (6th Cir.1978). See Rite-Hite, 56 F.3d at 1545-46, 1548; Kearns, 32 F.3d at 1551. The “Panduit test” requires that the patentee establish the following four factors: (1) demand for the patented product; (2) the absence of acceptable non-infringing substitutes; (3) the patent owner’s manufacturing and marketing capability to exploit the demand; and (4) the amount of profit the patent owner would have made Rite-Hite, 56 F.3d at 1545-46; Kearns, 32 F.3d at 1551 (citing Panduit, 575 F.2d at 1156). Satisfying the Panduit test “permits a court to reasonably infer that the lost profits claimed" }, { "docid": "10304727", "title": "", "text": "means of approximating the damages suffered by the plaintiffs. The incremental income approach to the computation of lost profits is well established in the law relating to patent damages [citations omitted]. The approach recognizes that it does not cost as much to produce unit N — 1 if the first N (or fewer) units produced have already paid the fixed costs. Thus fixed costs—those costs which do not vary with increases in production such as management salaries, property taxes, and insurance—are excluded when determining profits. Paper Converting Machine Co. v. Magna-Graphics Corp., 745 F.2d 11, 22, 223 U.S.P.Q. 591 (Fed.Cir.1984). The plaintiffs have shown entitlement to an award of lost profits in this case insofar as they have shown a reasonable probability that, in the absence of Brewer’s infringement, Chief would have sold the additional machines. See Bio-Rad Laboratories, Inc. v. Nicolet Instrument Corp., 739 F.2d 604, 222 U.S.P.Q. 654 (Fed.Cir.) cert. denied 469 U.S. 1038, 105 S.Ct. 516, 83 L.Ed.2d 405 (1984). Chief had the manufacturing and marketing capabilities to accommodate such an increase in sales, and in light of other machines in the industry, it had remarkable success. Chief’s damages have been adequately proved. “... While the damages may not be determined by mere speculation or guess, it will be enough if the evidence show [sic] the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.” Lam, Inc. v. Johns-Manville Corp., 718 F.2d 1056, 1065, 219 U.S.P.Q. 670 (Fed.Cir.1983) citing Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931). The sum of $6,500.00 will be awarded as a reasonable royalty for the manufacture and use of Machine No. 1. The royalty paid to Chisum under his license agreement with Chief is not a reasonable figure upon which a “reasonable royalty” can be based. ... The actual license rate does not necessarily constitute a reasonably royalty. See General Motors Corp. v. Blackmore, 53 F.2d 725 (6th Cir.1939). Thus, when the actual license rate is artificially low, a reasonable royalty may be" }, { "docid": "9788770", "title": "", "text": "patentee must show a reasonable probability that, “but for” the infringement, it would have made the sales that were made by the infringer. Rite-Hite Corp. v. Kelley Co., Inc., 56 F.3d 1538, 1545 (Fed.Cir.1995) (citations omitted). The Federal Circuit has adopted a four-factor test, first articulated in Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir.1978), as a standard, non-exclusive method for a pat-entee to establish entitlement to lost profits damages. Under the Pandtdt test, the patentee must prove: (1) demand for the patented product; (2) absence of acceptable non-infringing substitutes; (3) manufacturing and marketing capability to exploit the demand; and (4) the amount of the profit it would have made. Id. A patentee need not negate every possibility that a purchaser might have bought a product other than its own. Rite-Hite, 56 F.3d at 1545. On the contrary, so long as the patentee establishes each of the Panduit factors, the court may reasonably infer that the claimed lost profits were caused by the infringing sales. Id. Thus, by satisfying the Panduit test, the paten- tee establishes its prima facie case with respect to “but for” causation. The burden, in turn, shifts to the alleged infringer to show that the inference is unreasonable for some or all of the lost sales. Id. Besides the Panduit test, the Federal Circuit has recognized that a pat-entee also may prove lost profits under a market share theory. State Indus., Inc. v. Mor-Flo Indus., Inc., 883 F.2d 1573, 1577 (Fed.Cir.1989). Under this approach, a patentee recovers lost profits on the percentage of infringing sales equal to its market share. Id. at 1578. The Federal Circuit has explained that “[i]n the two-supplier market, it is reasonable to assume, provided the patent owner has the manufacturing and marketing capabilities, that it would have made the infringer’s sales.... In these instances, the Panduit test is usually straightforward and disposi-tive.” Id. The Federal Circuit has recognized, however, that a two-supplier market is not always in play and that the factors in the Panduit factors are not always applicable. Therefore, the Federal Circuit has held" } ]

[ { "docid": "4863655", "title": "", "text": "suggests that the Defendants had a policy of treating at least some of a discrete class of employees (i.e. Crew Coordinators) as exempt from the FLSA overtime requirements. That showing is sufficient for this Court to determine that a “similarly situated” group of potential plaintiffs exists given the adopted lenient standard for court-facilitated notice. See, e.g., Sperling, 118 F.R.D. at 407 (courts generally require only “substantial allegations that the putative class members were together the victim of a single decision, policy, or plan infected by discrimination.”); Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997)(requiring only “a modest factual showing sufficient to demonstrate that [plaintiffs] and potential plaintiffs together were the victims of a common policy or plan that violated the law”). The conditional class will be limited to Crew Coordinators employed by the Defendants between October 18, 1997 and the present who were treated by the Defendants as exempt from the overtime requirements of the FLSA. By virtue of this conditional certification, this Court renders no opinion on the merits of Kane’s claims. See Hoffmann-La Roche, 493 U.S. at 174, 110 S.Ct. 482 (“[i]n exercising the discretionary authority to oversee the notice-giving process, courts must be scrupulous to respect judicial neutrality.”). Furthermore, the Defendants will be free to challenge the scope of the class, if appropriate, by filing a motion for decertification after limited discovery. ORDER For the reasons set forth in the Memorandum above, plaintiffs motion for an order directing the defendants to provide plaintiff with the names and addresses of all putative class members and authorizing notice to such class members (Docket No. 9) is ALLOWED. Within ten (10) days of the date of this order, defendants will provide plaintiff with the names and last known mailing and e-mail addresses of each person employed by any defendant as a Crew Coordinator at any time between October 18, 1997 and the present who was treated as exempt from the overtime requirements of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Plaintiff is authorized to send each class member a notice informing them of the pendency" } ]

[ { "docid": "4150926", "title": "", "text": "referred to in terms of “certifying a class.” See, e.g., Hunter v. Sprint Corp., 346 F.Supp.2d 113, 117 (D.D.C.2004); De Lunar-Guerrero v. North Carolina Grower’s Ass’n, Inc., 338 F.Supp.2d 649, 654 (E.D.N.C.2004). The analysis is in some respects similar to that used in class actions, however, in that the court has to decide whether there is a sufficient showing of “similarly situated” employees, and to whom the notice should be sent. Courts utilize a two-step approach when certifying collective actions under the FLSA. See, e.g., Mooney v. Aramco Services Co., 54 F.3d 1207, 1213-14 (5th Cir.1995); Schwed v. General Electric Co., 159 F.R.D. 373, 375 (N.D.N.Y.1995); Lusardi v. Xerox Corp., 122 F.R.D. 463 (D.N.J.1988). In the first step, the court examines the pleadings and affidavits of the proposed collective action and determines whether the proposed class members are “similarly situated.” See Mooney, 54 F.3d at 1213-14. If the court finds that the proposed class members are similarly situated, the court “conditionally certifies” the class. Id. Putative class members are given notice and the opportunity to “opt in” and the action proceeds as a representative action throughout discovery. Id. In this early phase, courts employ a relatively lenient evidentiary standard in determining whether a collective action is appropriate. “At the notice stage, courts appear to require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan infected by discrimination.” Id. at 1213. To demonstrate that other potential plaintiffs are similarly situated to him, then, a plaintiff must make only a “modest factual showing sufficient to demonstrate that [he] and potential plaintiffs together were victims of a common policy or plan that violated the law.” Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997) (citations omitted). “A plaintiffs burden [at this stage] is minimal, especially since the ‘determination that potential plaintiffs are similarly situated’ is merely a ‘preliminary’ one.” Gjurovich v. Emmanuel’s Marketplace, Inc., 282 F.Supp.2d at 104 (quoting Hoffmann, 982 F.Supp. at 261). “The second phase of an FLSA collective action inquiry occurs after discovery is largely complete and ‘is" }, { "docid": "13843930", "title": "", "text": "to other potential plaintiffs as victims of an unlawful practice. Clarke, 370 F.Supp.2d at 605; Heagney v. European American Bank, 122 F.R.D. 125, 127 (E.D.N.Y.1988). In determining whether plaintiffs have met their initial burden, courts rely on the complaint and any affidavits that have been submitted. Mooney v. Aramco Services Co., 54 F.3d 1207, 1213-14 (5th Cir.1995); Bell, 223 F.R.D. at 682. Defendant argues that plaintiff should not be allowed to send a notice because this case is not appropriate for class treatment. It contends that “the primary question” in this case will be whether plaintiff falls within the “white collar exemption” to the FLSA’s overtime compensation requirement. Dft.’s Br., dkt. # 9, at 5. It cites several eases in which courts declined to certify collective actions because liability depended on fact-specific examinations of each individual’s employment and the applicability of statutory exemptions. E.g., Mike, 274 F.Supp.2d at 220-21; Clausman v. Nortel Networks, Inc., IP 02-0400-C-M/S, 2003 WL 21314065 (S.D.Ind. May 1, 2003); Pfaahler v. Consultants for Architects, Inc., No. 99 C 6700, 2000 WL 198888 (N.D.Ill. Feb.8, 2000). In addition, defendant argues that plaintiff is not similarly situated to other Law Specialists employed by defendant. It has filed several affidavits in support of this argument and devotes more than ten pages in its brief to explaining duties of Non-Litigation Team Law Specialists, Process Team Law Specialists and Law Specialists who function as case managers. As the detail inherent in these arguments should indicate, defendant should have reserved them for a later stage in the proceedings under the FLSA. As the court noted in Gambo, 2005 WL 3542485 at *4, “[t]he possibility of a fact-intensive inquiry into whether all members of the putative opt-in class are in fact similarly-situated does not preclude authorizing notice, although the need for such an analysis might weigh against or defeat certification of an actual class (or influence the form of any eventual certified class) at the second stage.” Defendant’s arguments about the predominance of individualized inquiries and the dissimilarities between plaintiff and other employees are properly raised after the parties have conducted discovery and" }, { "docid": "12927373", "title": "", "text": "2005 WL 2000133, *12-14, 2005 U.S. Dist. LEXIS 18022, *36-40 (E.D.N.Y. Aug. 18, 2005). Potential class members are then notified and provided with the opportunity to opt in to the action. Scholtisek, 229 F.R.D. at 387. After discovery, a court examines the record and again makes a factual finding regarding the similarly situated requirement; if the claimants are similarly situated, the collective action proceeds to trial, and if they are not, the class is decertified, the claims of the opt-in plaintiffs are dismissed without prejudice, and the class representative may proceed on his or her own claims. Id. When determining whether a matter shall proceed as a collective action, courts should be mindful of the remedial purposes of the FLSA. Braunstein v. Eastern Photographic Laboratories, Inc., 600 F.2d 335, 336 (2d Cir.1978). B. “Similarly Situated” Plaintiff moves to certify this action as a collective action based on the claim that he and potential plaintiffs are similarly situated because: they are all or have been subject to [Defendants’] centralized employment scheme, namely, Defendants’ misclassifi-cation of them as independent contractors and subsequent failure to compensate these employees in accordance with New York state and federal labor laws. (Pl.’s Mem. Law at 10.) Plaintiff cites for support the Court’s denial of Defendants’ motion for summary judgment. (Pl.’s Mem. Law at 10-11.) Defendants contend that Plaintiff has failed to demonstrate that he and potential plaintiffs are similarly situated. (Defs.’ Mem. Law at 10.) Plaintiff may satisfy the similarly situated requirement by making a “modest factual showing sufficient to demonstrate that [he or she] and potential plaintiffs together were victims of a common policy or plan that violated the law.” Gjurovich, 282 F.Supp.2d 101, 104 (quoting Sbarro, 982 F.Supp. 249, 261); Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y.2005). Plaintiff’s burden is minimal because the determination that the parties are similarly situated is merely a preliminary one. See, e.g., Realite v. Ark Restaurants Corp., 7 F.Supp.2d 303, 306 (S.D.N.Y.1998). To maintain a collective action under the FLSA, a named plaintiff “bears the burden of showing that she is sufficiently ‘similarly situated’ to the" }, { "docid": "9634542", "title": "", "text": "did so and their supplemental papers were received by the Court in November and December 2009. Discussion I. The Collective Action Standard Section 216(b) of the FLSA provides a private right of action to recover unpaid overtime compensation “against any employer ... by any one or more employees for and on behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). An employee cannot become a party to such an action, however, unless he or she provides consent, in writing, and such consent is filed in the court where the action is pending. See id.; see also Patton v. Thomson Corp., 364 F.Supp.2d 263, 266 (E.D.N.Y.2005) (“[0]th-er employees can become plaintiffs, and thereby be bound by the action’s determination, only by affirmatively acting to do so.”). Courts have discretion to authorize sending notice to potential plaintiffs in a collective action. See Sobczak v. AWL Indus., Inc., 540 F.Supp.2d 354, 362 (E.D.N.Y.2007) (citation omitted). The “threshold issue” in deciding whether to authorize class notice in an FLSA action is whether plaintiffs have demonstrated that the potential class members are “similarly situated.” Patton, 364 F.Supp.2d at 266-67 (citing Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997)); see also Sobczak, 540 F.Supp.2d at 362 (citing cases). Although the term “similarly situated” is not defined in the FLSA or its implementing regulations, courts have interpreted it to require plaintiffs to make “a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.” Sobczak, 540 F.Supp.2d at 362 (quoting Hoffmann, 982 F.Supp. at 261) (additional citations omitted); see also Patton, 364 F.Supp.2d at 267. “This burden is not a stringent one, and the Court need only reach a preliminary determination that potential plaintiffs are similarly situated.’ ” Patton, 364 F.Supp.2d at 267 (quoting Hoffmann, 982 F.Supp. at 261); see also Sobczak, 540 F.Supp.2d at 362 (stating that “[t]he burden at this initial stage is minimal”). A named plaintiff is not required to show “an actual FLSA violation” at this stage, but rather only that “a ‘factual" }, { "docid": "13843926", "title": "", "text": "consent in writing to become such a party and such consent is filed in the court in which such action is brought.” Collective actions under the FLSA depart from normal class action practice under Fed.R.Civ.P. 23 because plaintiffs must “opt-in” in order to be bound by a judgment. King v. General Electric Co., 960 F.2d 617, 621 (7th Cir.1992). Because of the “opt-in” requirement, a representative plaintiff must be able to inform other individuals who may have similar claims that they may join his lawsuit. It is well established that, in appropriate cases, district courts have the discretion to implement the “opt-in” provision by facilitating notice to potential plaintiffs in a collective action under the FLSA. Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989); see also Woods v. New York Life Insurance Company, 686 F.2d 578, 580 (7th Cir.1982) (district courts have “modest duty” to “regulate the content and distribution of the notice to potential class members”). Authorization of notice serves the broad, remedial purpose of the statute and comports with the court’s interest in managing its docket. Hoffmann-LaRoche, 493 U.S. at 172-74, 110 S.Ct. 482. B. Analytical Framework The critical inquiry in determining whether a court should exercise its discretion to authorize the sending of notice to potential plaintiffs is whether the representative plaintiff has shown that she is similarly situated to the potential class plaintiffs. The Fair Labor Standards Act does not set out a method for determining whether potential plaintiffs are similarly situated to a representative plaintiff and the Supreme Court and the Court of Appeals for the Seventh Circuit have not provided any guidance on the question. However, numerous other federal courts have employed a two-step approach. See generally Thiessen v. General Electric Capital Corp., 267 F.3d 1095 (10th Cir.2001) (describing two-step method and affirming district court’s use of it); Gambo v. Lucent Technologies, No. 05 C 3701, 2005 WL 3542485 (N.D.Ill.Dec.22, 2005); Clarke v. Convergys Customer Management Group, Inc., 370 F.Supp.2d 601 (S.D.Tex.2005); Mike v. Safeco Insurance Co. of America, 274 F.Supp.2d 216 (D.Conn.2003); Realite v. Ark" }, { "docid": "21169792", "title": "", "text": "without prejudice, and the class representative may proceed on his or her own claims. ABC Carpet & Home, 236 F.R.D. at 197. Neither the FLSA nor its implementing regulations defines the term “similarly situated.” Hoffmann v. Sbarro, Inc. 982 F.Supp. 249, 261 (S.D.N.Y.1997). However, courts have held that at the preliminary or conditional certification stage, plaintiffs can satisfy the “similarly situated” requirement by making “a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.’ ” Realite v. Ark Restaurants Corp., 1 F.Supp.2d 303, 306 (S.D.N.Y.1998); see also Krueger v. New York Telephone Co., 1993 WL 276058 (S.D.N.Y. July 21, 1993) (when the litigation is in its early stages, plaintiffs need only provide “some factual basis from which the court can determine if similarly situated plaintiffs exist.”) The “similarly situated” standard for certifying a class action is thus considerably more liberal than class certification under Rule 23. For certification of a representative action, “no showing of numerosity, typicality, commonality and representativeness need be made.” Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005). At this preliminary certification stage, plaintiffs have satisfied their minimal burden of showing that they are “similarly situated” to the proposed class members. All of the proposed class members are current or former employees of the defendants’ poultry facilities. In their declarations, the named plaintiffs set forth some of the factual bases for their claims along with their knowledge of the applicability of their claims to members of the proposed class. The named plaintiffs have adequately alleged that they together with the proposed class members were subjected to common wage, overtime and payroll practices that violated the FLSA. Having done so, they are entitled to proceed in a representative capacity. Defendants respond that the named plaintiffs are not “similarly situated” to the proposed class members because—with the exception of Plaintiff Leyva-Garcia’s short tenure as a butcher—all worked exclusively as duck feeders at La Belle Farm. Because duck feeding is a unique job, “with different work schedules and requirements,” defendants contend, plaintiffs" }, { "docid": "4892168", "title": "", "text": "determines whether class members are similarly situated based on pleadings and affidavits. Scholtisek v. Eldre Corp., 229 F.R.D. at 387; Cuzco v. Orion Builders, Inc. 477 F.Supp.2d at 632 (S.D.N.Y.2007). Following this determination, notification of class members proceeds according to a court-ordered plan, providing the opportunity for those notified to “opt-in” to the action. Scholtisek, 229 F.R.D. at 387. After discovery, the Court re-examines the record to determine whether the claimants are indeed similarly situated. Id. If they are not, the class can be decertified at that time and the claims of dissimilar “opt-in” plaintiffs dismissed without prejudice. Id. Neither the FLSA nor its accompanying regulations define the term “similarly situated.” However, when determining whether a matter shall proceed as a collective action, courts should be mindful of the remedial purposes of the FLSA. Braunstein v. Eastern Photographic Laboratories, Inc., 600 F.2d 335, 336 (2d Cir.1978). To maintain a collective action under the FLSA, a named Plaintiff bears the burden of showing that others are “similarly situated”; the test is “whether there is a ‘factual nexus’ between the claims of the named plaintiff and those who have chosen to opt-in to the action.” Davis v. Lenox Hill Hosp., 2004 WL 1926086, at *7, 2004 U.S. Dist. LEXIS 17283, at *25 (S.D.N.Y.2004). Courts have held that this burden is “minimal.” Cuzco, 477 F.Supp.2d at 632-633, (citing Gjurovich v. Emmanuel’s Marketplace, Inc., 282 F.Supp.2d 101, 106 (S.D.N.Y.2003)). A plaintiff can satisfy this burden “by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.” Realite v. Ark Restaurants Corp., 7 F.Supp.2d 303, 306 (S.D.N.Y.1998), Gjurovich, 282 F.Supp.2d at 104, Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997), Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y.2005). Therefore, the appropriate inquiry at this pre-discovery stage is whether the putative class alleged by Plaintiffs is similarly situated based on the pleadings and any affidavits. Plaintiffs Motion for Conditional Class Certification is supported by allegations in his Complaint, as well as declarations submitted by nine individuals. Eight" }, { "docid": "13843928", "title": "", "text": "Restaurants Corp., 7 F.Supp.2d 303 (S.D.N.Y.1998). In the first step, which occurs early in the case, the plaintiff must demonstrate a reasonable basis for believing that she is similarly situated to potential class members. Clarke, 370 F.Supp.2d at 604; Flores v. Lifeway Foods, Inc., 289 F.Supp.2d 1042, 1045 (N.D.Ill.2003); Kane v. Gage Merchandising Services, Inc., 138 F.Supp.2d 212, 214 (D.Mass.2001). If the plaintiff makes this showing, the court conditionally certifies a class, authorizes notice and the parties conduct discovery. Bell v. Mynt Entertainment, LLC, 223 F.R.D. 680, 682 (S.D.Fla.2004). At the close of discovery, the defendant may make a motion for decertification, at which point the court examines in detail the evidence and arguments submitted by the parties on the question of similar situation. Gambo, 2005 WL 3542485 at *4; Flores, 289 F.Supp.2d at 1045. If the court finds that any of the opt-in plaintiffs are not similarly situated to the representative plaintiff, it may dismiss them without prejudice. Also, the court may decertify the entire class if none of the class members are similarly situated. Kane, 138 F.Supp.2d at 214. However, if the plaintiff demonstrates that the class members are similarly situated, the case proceeds to trial as a class action. Id. I will adopt this framework for the purpose of determining whether plaintiff should be allowed to notify potential plaintiffs of her lawsuit. C. Propriety of Notice As noted above, courts may authorize the sending of notice where a plaintiff makes a colorable showing that other individuals are similarly situated. Because this case is in its early stages, plaintiffs burden is not a high one. Courts have held that plaintiffs can meet their burden by making “a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.” Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y.2005) (citations and quotations omitted); see also Gambo, 2005 WL 3542485 at *4; Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997). Put another way, a plaintiff must demonstrate that there is some factual nexus that connects him" }, { "docid": "15269487", "title": "", "text": "to recover the liability prescribed in [this section] may be maintained against any employer ... in any Federal ... court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. Although § 216(b) has no provision for issuing notice in a collective action, it is well settled that courts have discretion to authorize an FLSA plaintiff to send such notice to potential plaintiffs. See Masson v. Ecolab, Inc., No. 04 Civ. 4488(MBM), 2005 WL 2000133, at *13 (S.D.N.Y. Aug.17, 2005); Gjurovich v. Emmanuel’s Marketplace, Inc., 282 F.Supp.2d 91, 97 (S.D.N.Y.2003). To make this determination, the Court examines the pleadings and affidavits and determines whether the proposed class members are “similarly situated.” Masson, 2005 WL 2000133, at * 13. If so, the Court “conditionally certifies” the collective action. Masson, 2005 WL 2000133, at *13. Putative class members are given notice and the opportunity to “opt in” and the case proceeds through discovery as a representative action. Masson, 2005 WL 2000133, at *13. In the early stages of litigation, courts employ a relatively lenient evidentiary standard to determine whether a collective action is appropriate. Masson, 2005 WL 2000133, at *13; see also Jackson v. N.Y. Tel. Co., 163 F.R.D. 429, 431 (S.D.N.Y.1995) (“The inquiry at the inception of the lawsuit is less stringent than the ultimate determination that the class is properly constituted.”). A plaintiff can meet the burden of establishing that he is similarly situated to other potential plaintiffs by “making a modest factual showing sufficient to demonstrate that [he] and [they] together were victims of a common policy or plan that violated the law.” Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997). The Court must determine whether there is a “factual nexus between the [named plaintiffs] situation and the situation of other current and former [employees].” Hoffmann, 982 F.Supp. at" }, { "docid": "6773546", "title": "", "text": "at, 2005 WL 2000133, **13-14, 2005 U.S. Dist. LEXIS 18022,*39-40. At that point, “if the claimants are similarly situated, the collective action proceeds to trial, and if they are not, the class is decertified, the claims of the opt-in plaintiffs are dismissed without prejudice, and the class representative may proceed on his or her own claims.” Lee, 236 F.R.D. at 197. Plaintiffs motion here seeks only a first-step certification, and even though discovery is underway, it would be inappropriate at this time to attempt to make more than the first-step certification decision. See Damassia v. Duane Reade, Inc., No. 04 Civ. 8819(GEL), 2006 WL 2853971, *4, 2006 U.S. Dist. LEXIS 73090, at *12-13 (S.D.N.Y. Oct. 5, 2006). At this initial stage, a representative plaintiff has only a minimal burden to show that he is similarly situated to the potential class. See Gjurovich v. Emmanuel’s Marketplace, Inc., 282 F.Supp.2d 91, 96 (S.D.N.Y.2003); Young, 229 F.R.D. at 55. This inquiry is less stringent than the second-stage review that supplies the final determination on certification of the representative action. See Jackson v. New York Tel Co., 163 F.R.D. 429, 431 (S.D.N.Y.1995). A plaintiff can satisfy its initial burden “by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.” Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997). It is not necessary for a court to evaluate the merits of a plaintiffs claims in order to determine that a group of similarly situated persons exists. Id. at 262. ii. Parties’ arguments Plaintiff maintains that the evidence set forth in the Complaint, in Cuzco’s supporting declaration, and in subsequent submissions based on material gathered in the initial stages of discovery is sufficient to meet the minimal burden required at this stage of FLSA collective action certification. Defendants, meanwhile, argue that Plaintiff has not made even a modest factual showing that a representative action is appropriate here, and alternatively suggest that Plaintiffs motion should fail because Cuzco is the only named Plaintiff and does not provide any indication of" }, { "docid": "12059", "title": "", "text": "compensation and/or minimum wages. Id. (cited in Bifulco v. Mortgage Zone, Inc., 262 F.R.D. 209, 212 (E.D.N.Y.2009) (citations omitted)). “Although the FLSA does not contain a class certification requirement, such orders are often referred to in terms of ‘certifying a class.’ ” Bifulco, 262 F.R.D. at 212 (citations omitted). Courts within the Second Circuit apply a two-step analysis to determine whether an action should be certified as an FLSA collective action. First, the court determines whether the proposed class members are “similarly situated.” Rodolico v. Unisys Corp., 199 F.R.D. 468, 480 (E.D.N.Y.2001). If the court decides in the affirmative, then the proposed class members must consent in writing to be bound by the result of the suit, or “opt-in.” Id. (citing 29 U.S.C. § 216(b)) (additional citations omitted). The second step, which typically occurs after the completion of discovery, requires the court to make factual findings whether the class members are “actually ‘similarly situated.’ ” Bifulco, 262 F.R.D. at 212. “At that juncture, the court examines the evidentiary record to determine whether the ‘opt-in’ plaintiffs are, in fact, similarly situated to the named plaintiff.” Id. (citations omitted). The instant decision concerns only the first step — whether the proposed opt-in members are “similarly situated” such that conditional certification should be granted. At this stage, “the evidentiary standard is lenient,” Rubery v. Buth-Na-Bodhaige, Inc., 569 F.Supp.2d 334, 336 (W.D.N.Y.2008), and “plaintiffs need only make ‘a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.’ ” Doucoure v. Matlyn Food, Inc., 554 F.Supp.2d 369, 372 (E.D.N.Y.2008) (quoting Hoffmann v. Sbarro, 982 F.Supp. 249, 261 (S.D.N.Y.1997)). Courts have repeatedly stated that Section 216(b)’s “similarly situated” requirement is “considerably less stringent” than the requirements for class certification under Rule 23. Rodolico, 199 F.R.D. at 481 (citing cases). “In making this showing, ‘nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan’ is required.” Sexton v. Franklin First Fin., Ltd., No. 08-CV-4950, 2009 WL 1706535, at *3 (E.D.N.Y. Jun." }, { "docid": "12979959", "title": "", "text": "find plaintiffs must demonstrate potential class members are similarly situated “by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.” Vazquez, at *2 (quoting Realite v. Ark Rests. Corp., 7 F.Supp.2d 303, 306 (S.D.N.Y.1998)). See also Bontempo v. Metro Networks Commc’ns. Ltd. Partnership, 2002 WL 1925911, at *1 (N.D.Ill.2002). This modest showing requires Plaintiffs to show “a reasonable basis for believing” they are similarly situated to potential class members and to demonstrate a “factual nexus that binds potential members of a collective action.” Mares, 2007 WL 118877, at *3; Gambo v. Lucent Tech., Inc., 2005 WL 3542485, at *4 (N.D.Ill.2005). If such a showing is made, the court will conditionally certify the class, but if at the close of discovery the court finds any opt-in plaintiffs are not in fact similarly situated, it may dismiss them without prejudice or decertify the entire class. Mares, 2007 WL 118877, at *3. Despite the liberal standard applied at step one of conditional certification, courts still require plaintiffs to make factual allegations supported by admissible evidence. Id. Although the finding at step one is less stringent than step two and often leads to conditional certification, courts in this circuit nonetheless decline to certify a class where plaintiffs fail to provide sufficient proof regarding similarly situated employees. See Persin v. CareerBuilder, LLC, 2005 WL 3159684, at *1, *3 (N.D.Ill.2005) (noting that where plaintiff previously did not provide a description of his job duties or cite knowledge that others in the company performed similar duties, he did not produce sufficient evidence to demonstrate employees were similarly situated); Flores, 289 F.Supp.2d at 1046 (finding affidavits of only two employees did not give rise to a common policy or plan to meet the modest factual showing necessary at step one). Thus, Plaintiffs must complete a limited level of discovery in order to meet the conditional certification threshold. As stated above, Plaintiffs have yet to move for conditional certification. Therefore, the Court is not required to analyze who is similarly situated at" }, { "docid": "14877960", "title": "", "text": "... in any Federal or State court of competent jurisdiction by anyone or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the- court in which such action is brought. 29 U.S.C. § 216(b). Courts in this Circuit utilize a two-step process for determining whether to proceed collectively under Section 216(b). See, e.g., Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir.2010). In the first stage, the court must make an initial determination as to whether the named plaintiffs are “similarly situated” to the putative collective members. Id.; see also Cunningham v. Elec. Data Systems Corp., 754 F.Supp.2d 638, 644 (S.D.N.Y.2010) (quoting Lynch v. United Services Auto. Ass’n, 491 F.Supp.2d 357, 368 (S.D.N.Y.2007)); Morales v. Plantworks, Inc., No. 05 Civ. 2349(DC), 2006 WL 278154, at *1-2 (S.D.N.Y. Feb. 2, 2006). If the named plaintiffs make what has been described as a “ ‘modest factual showing’ ” that they and potential opt-in plaintiffs “‘together were victims of a common policy or plan that violated the law,’ ” court facilitated notice is appropriate. Myers, 624 F.3d at 555 (quoting Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997)); see also Cunningham, 754 F.Supp.2d at 644; Lynch, 491 F.Supp.2d at 368. For this reason, the initial phase is often termed the “notice stage.” See Lynch, 491 F.Supp.2d at 368. Because certification at this first early stage is preliminary and subject to reevaluation, the burden for demonstrating that potential plaintiffs are “similarly situated” is very low. See Lynch, 491 F.Supp.2d at 368; Spicer v. Pier Sixty LLC, 269 F.R.D. 321, 336 (S.D.N.Y.2010) (“The first stage, conditional certification, requires only a modest factual showing based on the pleadings and affidavits that the putative class members were victims of a common policy or plan that violated the law.”) (internal citations and quotation marks omitted). “ ‘The leniency of this requirement is consistent with the broad remedial purpose of the FLSA.’" }, { "docid": "12060", "title": "", "text": "are, in fact, similarly situated to the named plaintiff.” Id. (citations omitted). The instant decision concerns only the first step — whether the proposed opt-in members are “similarly situated” such that conditional certification should be granted. At this stage, “the evidentiary standard is lenient,” Rubery v. Buth-Na-Bodhaige, Inc., 569 F.Supp.2d 334, 336 (W.D.N.Y.2008), and “plaintiffs need only make ‘a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.’ ” Doucoure v. Matlyn Food, Inc., 554 F.Supp.2d 369, 372 (E.D.N.Y.2008) (quoting Hoffmann v. Sbarro, 982 F.Supp. 249, 261 (S.D.N.Y.1997)). Courts have repeatedly stated that Section 216(b)’s “similarly situated” requirement is “considerably less stringent” than the requirements for class certification under Rule 23. Rodolico, 199 F.R.D. at 481 (citing cases). “In making this showing, ‘nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan’ is required.” Sexton v. Franklin First Fin., Ltd., No. 08-CV-4950, 2009 WL 1706535, at *3 (E.D.N.Y. Jun. 16, 2009) (quoting Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y.2005)). Courts do not require proof of an actual FLSA violation, “but rather that a ‘factual nexus’ exists between the plaintiffs situation and the situation of other potential plaintiffs.” Sobczak v. AWL Industries, Inc., 540 F.Supp.2d 354, 362 (E.D.N.Y.2007). This determination is typically “based on the pleadings, affidavits and declarations” submitted by the plaintiffs. Sexton, 2009 WL 1706535, at *3 (quoting Hens v. ClientLogic Operating Corp., No. 05 Civ. 381S, 2006 WL 2795620, at *3 (W.D.N.Y. Sept. 26, 2006)); see also Hallissey v. Am. Online, Inc., No. 99 Civ. 3785, 2008 WL 465112, at *1 (S.D.N.Y. Feb. 19, 2008) (“Plaintiffs may satisfy this requirement by relying on their own pleadings, affidavits, declarations, or the affidavits and declarations of other potential class members.”); Wraga v. Marble Lite, Inc., No. 05 Civ. 5038, 2006 WL 2443554, at *2 (E.D.N.Y. Aug. 22, 2006) (granting approval of a collective action notice “based upon employee affidavits setting forth a defendant’s plan or scheme to not pay overtime compensation and" }, { "docid": "13843929", "title": "", "text": "situated. Kane, 138 F.Supp.2d at 214. However, if the plaintiff demonstrates that the class members are similarly situated, the case proceeds to trial as a class action. Id. I will adopt this framework for the purpose of determining whether plaintiff should be allowed to notify potential plaintiffs of her lawsuit. C. Propriety of Notice As noted above, courts may authorize the sending of notice where a plaintiff makes a colorable showing that other individuals are similarly situated. Because this case is in its early stages, plaintiffs burden is not a high one. Courts have held that plaintiffs can meet their burden by making “a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.” Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y.2005) (citations and quotations omitted); see also Gambo, 2005 WL 3542485 at *4; Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997). Put another way, a plaintiff must demonstrate that there is some factual nexus that connects him to other potential plaintiffs as victims of an unlawful practice. Clarke, 370 F.Supp.2d at 605; Heagney v. European American Bank, 122 F.R.D. 125, 127 (E.D.N.Y.1988). In determining whether plaintiffs have met their initial burden, courts rely on the complaint and any affidavits that have been submitted. Mooney v. Aramco Services Co., 54 F.3d 1207, 1213-14 (5th Cir.1995); Bell, 223 F.R.D. at 682. Defendant argues that plaintiff should not be allowed to send a notice because this case is not appropriate for class treatment. It contends that “the primary question” in this case will be whether plaintiff falls within the “white collar exemption” to the FLSA’s overtime compensation requirement. Dft.’s Br., dkt. # 9, at 5. It cites several eases in which courts declined to certify collective actions because liability depended on fact-specific examinations of each individual’s employment and the applicability of statutory exemptions. E.g., Mike, 274 F.Supp.2d at 220-21; Clausman v. Nortel Networks, Inc., IP 02-0400-C-M/S, 2003 WL 21314065 (S.D.Ind. May 1, 2003); Pfaahler v. Consultants for Architects, Inc., No. 99 C 6700, 2000 WL" }, { "docid": "12979958", "title": "", "text": "Flores, 289 F.Supp.2d at 1045. Courts use two general methods to determine when an FLSA class should be certified: the first uses elements of Rule 23 class actions and the second applies a two-step approach, approving notice to potential class members at the first step based on the pleadings and any affidavits, and definitively certifying the class at the second step once discovery has been completed. See id. at 1044-1045. See also Carter v. Indianapolis Power & Light Co., 2003 WL 23142183, at *3 (S.D.Ind.2003). Courts in the Seventh Circuit tend to adopt the second approach. Flores, 289 F.Supp.2d at 1045; Mares v. Caesars Entertainment, Inc., 2007 WL 118877, at *2 (S.D.Ind.2007). At the first step, courts have also applied various analyses for determining whether potential plaintiffs are similarly situated. See Vazquez v. Tri-State Mgmt. Co., 2002 WL 58718, at *2 (N.D.Ill.2002). “One court defined similarly situated as ‘performing the same type of duties as’ the named plaintiff.” Id. (quoting Pfaahler v. Consultants for Architects, Inc., 2000 WL 198888, at *2 (N.D.Ill.2000)). Yet other courts find plaintiffs must demonstrate potential class members are similarly situated “by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.” Vazquez, at *2 (quoting Realite v. Ark Rests. Corp., 7 F.Supp.2d 303, 306 (S.D.N.Y.1998)). See also Bontempo v. Metro Networks Commc’ns. Ltd. Partnership, 2002 WL 1925911, at *1 (N.D.Ill.2002). This modest showing requires Plaintiffs to show “a reasonable basis for believing” they are similarly situated to potential class members and to demonstrate a “factual nexus that binds potential members of a collective action.” Mares, 2007 WL 118877, at *3; Gambo v. Lucent Tech., Inc., 2005 WL 3542485, at *4 (N.D.Ill.2005). If such a showing is made, the court will conditionally certify the class, but if at the close of discovery the court finds any opt-in plaintiffs are not in fact similarly situated, it may dismiss them without prejudice or decertify the entire class. Mares, 2007 WL 118877, at *3. Despite the liberal standard applied at step one of" }, { "docid": "15269488", "title": "", "text": "action. Masson, 2005 WL 2000133, at *13. Putative class members are given notice and the opportunity to “opt in” and the case proceeds through discovery as a representative action. Masson, 2005 WL 2000133, at *13. In the early stages of litigation, courts employ a relatively lenient evidentiary standard to determine whether a collective action is appropriate. Masson, 2005 WL 2000133, at *13; see also Jackson v. N.Y. Tel. Co., 163 F.R.D. 429, 431 (S.D.N.Y.1995) (“The inquiry at the inception of the lawsuit is less stringent than the ultimate determination that the class is properly constituted.”). A plaintiff can meet the burden of establishing that he is similarly situated to other potential plaintiffs by “making a modest factual showing sufficient to demonstrate that [he] and [they] together were victims of a common policy or plan that violated the law.” Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997). The Court must determine whether there is a “factual nexus between the [named plaintiffs] situation and the situation of other current and former [employees].” Hoffmann, 982 F.Supp. at 262; see also Masson, 2005 WL 2000133, at *13. Thus, the merits of a plaintiffs claims need not be evaluated and discovery need not be completed to approve and disseminate a § 216(b) notice. Hoffmann, 982 F.Supp. at 262; Masson, 2005 WL 2000133, at *13. B. Appropriateness of Notice Plaintiff has presented declarations asserting that Defendants had a policy of denying overtime pay to parking attendants, which they concealed by, inter alia, transferring employees between garages and issuing separate W-2s for work performed in different locations. While dates of employment and hours worked are unique to each employee, Plaintiff has met his burden of “making a modest factual showing sufficient to demonstrate that [he] and [other employees] together were victims of a common policy or plan that violated the law.” Hoffmann, 982 F.Supp. at 261. Accordingly, Plaintiffs motion to circulate a Notice of Pendency and Consent to Join pursuant to 29 U.S.C. § 216(b) is granted. See Hoffmann, 982 F.Supp. at 261; Damassia, 2006 WL 2853971, at *6 (granting motion to circulate § 216(b) notice" }, { "docid": "6753800", "title": "", "text": "pleadings, affidavits, and other submitted documents. Kalloo v. Unlimited Mech. Co. of NY, Inc., 908 F.Supp.2d 344, 346 (E.D.N.Y.2012). If the similarly-situated requirement’s minimal burden is met, then the class is “conditionally certified” as a collective action. See id. The first step requires only a “modest factual showing sufficient to demonstrate that [plaintiffs] and potential plaintiffs together were victims of a common policy or plan that violated the law.” Jenkins v. TJX Companies Inc., 853 F.Supp.2d 317, 321 (E.D.N.Y.2012) (internal quotation marks omitted). The burden at this first step is minimal because even if the court determines that the potential class members are “similarly situated,” such a determination is preliminary and it “may be modified or reversed at the second certification [step].” Kalloo, 908 F.Supp.2d at 346; see also Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y.2006). It should be noted that “[a] named plaintiff is not required to show an actual FLSA violation at this stage, but rather only that a factual nexus exists between the plaintiffs situation and the situation of other potential plaintiffs.” Calderon v. King Umberto, Inc., 892 F.Supp.2d 456, 459 (E.D.N.Y.2012) (internal quotation marks omitted); see also Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y.2005) (same). “At this conditional certification stage, the focus of the inquiry is not on whether there has been an actual violation of law but rather on whether the proposed plaintiffs are similarly situated under 29 U.S.C. § 216(b) with respect to their allegations that the law has been violated.” Kalloo, 908 F.Supp.2d at 346 (internal quotation marks omitted); see also Krueger v. N.Y. Tel. Co., 1993 WL 276058, at *2 (S.D.N.Y. July 21, 1993) (“the Court need not evaluate the merits of plaintiffs’ claims in order to determine whether a ‘similarly situated’ group exists.”). Furthermore, conditional certification “does not produce a class with an independent legal status, or join additional parties to the action. The sole consequence of conditional certification is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the" }, { "docid": "13843927", "title": "", "text": "statute and comports with the court’s interest in managing its docket. Hoffmann-LaRoche, 493 U.S. at 172-74, 110 S.Ct. 482. B. Analytical Framework The critical inquiry in determining whether a court should exercise its discretion to authorize the sending of notice to potential plaintiffs is whether the representative plaintiff has shown that she is similarly situated to the potential class plaintiffs. The Fair Labor Standards Act does not set out a method for determining whether potential plaintiffs are similarly situated to a representative plaintiff and the Supreme Court and the Court of Appeals for the Seventh Circuit have not provided any guidance on the question. However, numerous other federal courts have employed a two-step approach. See generally Thiessen v. General Electric Capital Corp., 267 F.3d 1095 (10th Cir.2001) (describing two-step method and affirming district court’s use of it); Gambo v. Lucent Technologies, No. 05 C 3701, 2005 WL 3542485 (N.D.Ill.Dec.22, 2005); Clarke v. Convergys Customer Management Group, Inc., 370 F.Supp.2d 601 (S.D.Tex.2005); Mike v. Safeco Insurance Co. of America, 274 F.Supp.2d 216 (D.Conn.2003); Realite v. Ark Restaurants Corp., 7 F.Supp.2d 303 (S.D.N.Y.1998). In the first step, which occurs early in the case, the plaintiff must demonstrate a reasonable basis for believing that she is similarly situated to potential class members. Clarke, 370 F.Supp.2d at 604; Flores v. Lifeway Foods, Inc., 289 F.Supp.2d 1042, 1045 (N.D.Ill.2003); Kane v. Gage Merchandising Services, Inc., 138 F.Supp.2d 212, 214 (D.Mass.2001). If the plaintiff makes this showing, the court conditionally certifies a class, authorizes notice and the parties conduct discovery. Bell v. Mynt Entertainment, LLC, 223 F.R.D. 680, 682 (S.D.Fla.2004). At the close of discovery, the defendant may make a motion for decertification, at which point the court examines in detail the evidence and arguments submitted by the parties on the question of similar situation. Gambo, 2005 WL 3542485 at *4; Flores, 289 F.Supp.2d at 1045. If the court finds that any of the opt-in plaintiffs are not similarly situated to the representative plaintiff, it may dismiss them without prejudice. Also, the court may decertify the entire class if none of the class members are similarly" }, { "docid": "12930799", "title": "", "text": "L.Ed.2d 84 (2003). Many courts have joined the Fifth Circuit in describing the standard at the notice stage as “fairly lenient.” E.g., Salinas-Rodriguez v. Alpha Servs., LLC, No. Civ.A. 3:05VB44WHBAGN, 2005 WL 3557178, at *3 (S.D.Miss. Dec. 27, 2005); Aguayo, 2005 WL 2436477, at *3; Harrison v. McDonald’s Corp., 411 F.Supp.2d 862, 864 (S.D.Ohio 2005); Olivo v. GMAC Mortgage Corp., 374 F.Supp.2d 545, 548 (E.D.Mich.2004). Various courts have described a plaintiffs burden at the notice stage as requiring the following: a “modest factual showing” that the named plaintiff and putative plaintiffs together were victims of a common policy or plan that violated the law, Gambo v. Lucent Techs., Inc., No. 05 C 3701, 2005 WL 3542485, at *4 (N.D.Ill.Dec. 22, 2005); Diaz v. Elec. Boutique of Am., No. 04-CV-0840E(SR), 2005 WL 2654270, at *3 (W.D.N.Y. Oct. 17, 2005); Harrison, at 864; Olivo, 374 F.Supp.2d at 548; Mike, 274 F.Supp.2d at 220; Realite, 7 F.Supp.2d at 306; “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan,” Thiessen, 267 F.3d at 1102; Moeck, 2006 WL 42368, at *4; “substantial allegations of class-wide discrimination,” Hipp, 252 F.3d at 1219; Aguayo, 2005 WL 2436477, at *3; a “factual nexus” between the plaintiffs situation and the situation of other current and former employees, Gambo, 2005 WL 3542485, at *4; Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y.2005); Salinas-Rodriguez, 2005 WL 3557178, at *3; “some rudimentary showing of commonality between the basis for [the plaintiffs] claims and that of the potential claims of the proposed class,” Horne v. United Servs. Auto. Ass’n, 279 F.Supp.2d 1231, 1234 (M.D.Ala.2003); a “threshold showing” that the plaintiff is similarly situated to the other employees he wishes to represent, Reich v. Homier Distrib. Co., 362 F.Supp.2d 1009, 1012 (N.D.Ind.2005); or a “colorable basis” for the plaintiffs claim that the putative plaintiffs are similarly situated, Harrison, at 864; Olivo, 374 F.Supp.2d at 548; Ray v. Motel 6 Operating Ltd. P’ship, No. 3-95-828, 1996 WL 938231, at *2 (D.Minn. Mar. 18, 1996). The burden under the first step of the analysis is" } ]

[ { "docid": "22642168", "title": "", "text": "in Edwards v. Balisok, the Magistrate Judge concluded that because Ramirez had not previously invalidated his disciplinary sentence, the constitutional challenges to the disciplinary hearing should be dismissed for failure to state a claim. Separately, the Magistrate Judge determined that Ramirez’s claims regarding the prison appeals process should be dismissed because the actions of prison officials in reviewing an administrative appeal could not serve as a basis for liability under § 1983. Finding no actionable claims, the Magistrate Judge recommended that Ramirez’s complaint be dismissed without leave to amend, but without prejudice to refiling if his disciplinary sentence was invalidated through a writ of habeas corpus. Ramirez filed objections to the report and recommendations of the Magistrate Judge. On May 8, 2000, the District Court adopted the Magistrate Judge’s report and recommendations in full, and dismissed the complaint. Ramirez now appeals and we exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291. II. DISCUSSION We review de novo the District Court’s dismissal of Ramirez’s complaint under 28 U.S.C. § 1915A for failure to state a claim. Resnick v. Hayes, 213 F.3d 443, 447(9th Cir.2000). We review the denial of leave to amend for an abuse of discretion. Lopez v. Smith, 203 F.3d 1122, 1130(9th Cir.2000) (en banc). In reviewing the District Court’s dismissal, “we consider only the contents of the complaint, taking as true all the allegations of material fact,” construed in the light most favorable to the plaintiff. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir.1997); see also Resnick, 213 F.3d at 447. We note finally that courts must generally construe pro se pleadings liberally. Resnick, 213 F.3d at 447. A. The Disciplinary Hearing We begin with Ramirez’s argument that Heck v. Humphrey and Edwards v. Balisok do not require the invalidation of his disciplinary sentence to pursue an action under § 1983 for the constitutional violations allegedly committed during his disciplinary hearing. To understand the District Court’s rationale for dismissing these claims, it is necessary to examine the framework of the federal civil rights and habeas corpus statutes, and the Supreme Court cases explaining the use of" } ]

[ { "docid": "22785642", "title": "", "text": "prison medical treatment, an inmate must show “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In the Ninth Circuit, the test for deliberate indifference consists of two parts. McGuckin v. Smith, 974 F.2d 1050 (9th Cir.1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997) (en banc). First, the plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’ ” Id. at 1059 (citing Estelle, 429 U.S. at 104, 97 S.Ct. 285). Second, the plaintiff must show the defendant’s response to the need was deliberately indifferent. Id. at 1060. This second prong — defendant’s response to the need was deliberately indifferent — is satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference. Id. Indifference “may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. at 1059 (quoting Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988)). Yet, an “inadvertent [or negligent] failure 'to provide adequate medical care” alone does not state a claim under. § 1983. Id. (citing Estelle, 429 U.S. at 105, 97 S.Ct. 285). A prisoner need not show-his- harm was substantial; however, such would provide additional support for the inmate’s claim that the defendant was deliberately indifferent to his needs. Id. at 1060. If the harm is an “isolated exception” to the defendant’s “overall treatment of the prisoner [it] ordinarily militates against a finding of deliberate indifference.” Id. (citations omitted). Mr. Jett.argues the district court erred by adopting the magistrate’s Findings and Recommendations because he presented sufficient evidence to establish Defendants were deliberately indifferent to his need to have his fractured thumb set and cast. We agree. with Mr. Jett; therefore we reverse and remand for trial. A. Dr. Penner The" }, { "docid": "19067888", "title": "", "text": "WILLIAMS, Circuit Judge. Miguel Perez, an inmate at Lawrence Correctional Center, brought an action under 42 U.S.C. § 1983 against various prison officials alleging cruel and unusual punishment in violation of the Eighth Amendment. According to his pro se complaint, prison officials were deliberately indifferent to his severe hand injury, delaying his receipt of medically necessary surgery for ten months. This delay caused Perez needless pain and suffering and left him with permanent loss of hand functioning. The district court, after denying Perez’s request for pro bono counsel, screened his complaint under 28 U.S.C. § 1915A, and dismissed it sua sponte, with prejudice, for failure to state a claim. This appeal followed. We find that the district court’s dismissal of Perez’s claims was premature. Liberally construed, Perez’s pro se complaint states valid Eighth Amendment claims against members of the prison’s medical staff and various grievance officials. It also states, by way of an attached grievance, a valid First Amendment retaliation claim. Therefore, we reverse the district court’s dismissal and remand for proceedings consistent with this opinion. I. BACKGROUND We accept the facts alleged in Perez’s complaint as true and review them in the light most favorable to him. Thulin v. Shopko Stores Operating Co., LLC, 771 F.3d 994, 997 (7th Cir.2014). On May 16, 2010, while an inmate at Lawrence Correctional Center in Sumner, Illinois, Miguel Perez was injured during a prison basketball game. He suffered a torn ligament in his right hand, dislocation of his thumb, tissue damage, and a “gaping wound” between his thumb and right index finger. No physician was on duty at the prison, so Perez was seen by a nurse, C. Brooks, who wrapped his hand with gauze. She stated that she could not provide pain medicine to Perez or stitch his wound because only physicians were authorized to do so. The following day, Perez returned to the prison infirmary and was seen by a physician, Dr. James Fenoglio, who prescribed Perez antibiotics, but did not stitch his wound. Recognizing the severity of the injury, Dr. Fenoglio stated that Perez “would need to go to" }, { "docid": "22047605", "title": "", "text": "that Hathaway would consent to hip surgery and requesting a new evaluation and treatment plan. Foote responded to Jones by memorandum with respect to both letters. By this time, Hathaway. had complained about his pain sixteen times in 1982. Two weeks later, Hathaway filed an action pro se pursuant to 42 U.S.C. § 1983 against several defendants, including Jones and Foote, alleging a denial of medical care. Shortly thereafter, Foote informed Jones that although Hathaway had declined a previous offer of surgery, Foote would refer Hathaway to Quellman for a re-evaluation for surgery. Hathaway met with Quellman on February' 4, 1983, and as a result, more sophisticated tests were performed. Quell-man testified at trial that as a result of these tests, he concluded that surgery to remove the pins was not medically necessary, but that surgery might reduce Hathaway’s pain. Hathaway was then given the option of surgery. He received a second opinion from Schlesinger, who advised that surgery would be appropriate to remove the pins and to perform a bone graft to correct certain de formities. On October 13, 1983, Quellman performed the surgery, during which he removed the accessible portions of the broken pins and repaired portions of the hip by bone graft. Initially, the district court granted defendants’ motion for summary judgment and dismissed Hathaway’s complaint on the grounds that he failed to state a claim of deliberate indifference to his serious medical needs as required by Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). We reversed the district court’s grant of summary judgment because Hathaway’s allegation of a two-year delay in arranging hip surgery could constitute the required deliberate indifference. See Hathaway v. Coughlin, 841 F.2d 48 (2d Cir.1988). Upon remand, counsel was appointed for Hathaway and the case proceeded to trial. At the close of evidence, the district court dismissed the complaint against the defendants other than Foote pursuant to Fed. R.Civ.P. 50(a) because of their lack of personal involvement in his care and reserved decision with respect to Foote’s motion to dismiss. After the jury ultimately deadlocked, the district" }, { "docid": "23051560", "title": "", "text": "that “medical providers have determined that surgery is not medically warranted in light of Plaintiffs overall visual acuity and ability to adequately function.” The court also held that the Panel’s decision to refuse surgery amounted to a difference of opinion over the best course of treatment, and that Colwell had not shown that the NDOC’s course of action was “medically unacceptable” or “made in conscious disregard of an excessive risk to his health.” DISCUSSION 1. Legal Standards We have jurisdiction pursuant to 28 U.S.C. § 1291, and review de novo the district court’s grant of summary judgment. Toguchi v. Chung, 391 F.3d 1051, 1056 (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.” Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir.2005). The government has an “obligation to provide medical care for those whom it is punishing by incarceration,” and failure to meet that obligation can constitute an Eighth Amendment violation cognizable under § 1983. Estelle v. Gamble, 429 U.S. 97, 103-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In order to prevail on an Eighth Amendment claim for inadequate medical care, a plaintiff must show “deliberate indifference” to his “serious medical needs.” Id. at 104, 97 S.Ct. 285. This includes “both an objective standard — that the deprivation was serious enough to constitute cruel and unusual punishment — and a subjective standard— deliberate indifference.” Snow, 681 F.3d at 985. To meet the objective element of the standard, a plaintiff must demonstrate the existence of a serious medical need. Estelle, 429 U.S. at 104, 97 S.Ct. 285. Such a need exists if failure to treat the injury or condition “could result in further significant injury” or cause “the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled in part on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997)" }, { "docid": "1062078", "title": "", "text": "they can do for [his] condition because he has missed medical appointments.” R. I., doc. 7 at 3-4. He alleges that he has “not been informed of the medical appointments,” and that he is “required to rely upon the staff at the Department of Corrections” to schedule and “arrange transportation” for his appointments. Id. at 4. His § 1983 complaint, which was filed following exhaustion of his administrative remedies, seeks redress for violation of his Eighth Amendment right against cruel and unusual punishment, including compensatory and punitive damages and an order directing defendants to provide the prescribed medical care. THE STANDARD OP REVIEW This court reviews a decision to dismiss for failure to state a claim de novo, and “[djismissal of a pro se complaint ... is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002) (quotation omitted). In addition to construing a pro se complaint liberally, this court “must accept the allegations of the complaint as true and construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff.” Id. (citation omitted). THE EIGHTH AMENDMENT A “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (citation omitted). “This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983.” Id. at 104-05, 97 S.Ct. 285. “ ‘Deliberate indifference’ involves both an objective and a subjective component.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.2000). The objective component is met if the deprivation is “sufficiently" }, { "docid": "22288152", "title": "", "text": "treatment, first the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction of pain. Second, a plaintiff must show the defendant’s response to the need was deliberately indifferent.” Conn, 591 F.3d at 1094-95 (internal quotation marks and citation omitted). The “deliberate indifference” prong requires “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006); Conn, 591 F.3d at 1095 (quoting Jett, 439 F.3d at 1096). “Indifference may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown in the way in which prison [officials] provide medical care.” Jett, 439 F.3d at 1096 (citations and internal quotations marks omitted). “[T]he indifference to [a prisoner’s] medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this [claim].” Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir.1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.1990). 1. Sufficiently Serious Prong Plaintiffs must show that St. Jovite had an objectively serious medical need. Conn, 591 F.3d at 1095. St. Jovite was found in his cell unconscious and not breathing. Defendants properly do not dispute that the medical need here was a serious one. 2. Deliberate Indifference Prong Plaintiffs alleging an Eighth Amendment claim based upon the failure to provide medical treatment must also show that Defendants “were (a) subjectively aware of the serious medical need and (b) failed to adequately respond.” Conn, 591 F.3d at 1096 (emphasis in original). a. Cahoon and Holliday The third watch floor officers, Cahoon and Holliday, were the first of the prison personnel to arrive at St. Jovite’s cell. Drawing all inferences in favor of Plaintiffs, as we must, it could be found that St. Jovite’s cellmate began" }, { "docid": "22785641", "title": "", "text": "initiated this action pro se on September 17, 2002, seeking damages for pain and suffering and the continuing diminished use of his hand. He alleged causes of action under the Eighth Amendment and California Government Code § 845.6. Without holding a scheduling conference or obtaining information from the parties, the magistrate issued scheduling and discovery orders. Defendants filed a dispositive motion, and on January 16, 2004, the magistrate issued “Findings and Recommendations,” recommending the district court grant summary judgment to Defendants on all of Mr. Jett’s causes of action. The district court adopted the magistrate judge’s recommendations in full and granted summary judgment in Defendants’ favor on March 30, 2004. Mr. Jett timely appealed,- and the Ninth Circuit ap-: pointed counsel for Mr. Jett. We review de novo the district court’s summary judgment ruling. See Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.2002); Devereaux v. Abbey, 263 F.3d 1070 1074 (9th Cir.2001) (en banc). II. ANALYSIS U.S.C. § 1983: Eighth Amendment Under 42 U.S.C. § 1983, to maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In the Ninth Circuit, the test for deliberate indifference consists of two parts. McGuckin v. Smith, 974 F.2d 1050 (9th Cir.1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997) (en banc). First, the plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’ ” Id. at 1059 (citing Estelle, 429 U.S. at 104, 97 S.Ct. 285). Second, the plaintiff must show the defendant’s response to the need was deliberately indifferent. Id. at 1060. This second prong — defendant’s response to the need was deliberately indifferent — is satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference. Id. Indifference “may appear when prison officials deny," }, { "docid": "22541414", "title": "", "text": "defendant notice of the claim.”). Upon de novo review of the original complaint, see McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997) (dismissal under § 1915A for failure to state claim is reviewed de novo), we believe Cooper stated claims for relief against several defendants, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam) (pro se litigant’s allegations are construed liberally). We conclude that Cooper stated a claim against health care administrator Rhonda Almanza for deliberate indifference to serious medical and dental needs in violation of the Eighth Amendment, as Cooper alleged he filed a medical service request regarding his painful dental problems (decayed and cracked teeth) and was refused treatment. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (Eighth Amendment violated where prison officials are deliberately indifferent to prisoner’s serious medical needs); Boyd v. Knox, 47 F.3d 966, 969 (8th Cir.1995) (delay in dental care coupled with knowledge of patient’s pain can support Eighth Amendment claim). We also conclude Cooper stated a claim against “Function Unit Manager” (FUM) Russell Hollowell for denying him access to printed materials, including “all magazines” and legal and religious materials, in violation of the First Amendment. Prison regulations which restrict an inmate’s access to publications are valid under the Constitution if “reasonably related to legitimate penological interests.” See Dawson v. Scurr, 986 F.2d 257, 259-60, 263 (8th Cir.) (internal quotation omitted) (upholding Iowa regulations limiting access to sexually explicit materials), cert. denied, 510 U.S. 884, 114 S.Ct. 232, 126 L.Ed.2d 187 (1993). Given Cooper’s allegation that he was denied all magazines as well as copies of other specific publications, we believe the prison would be obligated to proffer a legitimate reason for any decision to deny Cooper access to these materials. Related to this claim, we conclude Cooper’s allegation that DOC director Dora Schriro authorized the denial of printed materials to inmates is sufficiently specific to state a section 1983 claim for actions allegedly taken directly by her. See Boyd, 47 F.3d at 968 (supervisor may not incur" }, { "docid": "23466658", "title": "", "text": "to enter his nose when he ate. The ENT specialist performed another surgery on November 2 to remove the tissue mass and close the hole. At screening the district court concluded that McGowan’s allegations did not describe deliberate indifference on the part of either Gardner or Chapman; it therefore dismissed the case. The court did not mention the negligence allegations. It is possible that it implicitly declined to exercise its supplemental jurisdiction, see 28 U.S.C. § 1367(c), but the dismissal apparently addressed the entire complaint and was with prejudice. The court reasoned that McGowan’s allegations about the tooth extraction described only negligence by Gardner and not deliberate indifference. The court then concluded that the May 2007 referral to an outside oral surgeon and the June 2007 referral to an ENT specialist negated the possibility that any of the remaining defendants withheld medical care from McGowan. The court acknowledged that McGowan’s treatment had been dragged out over a long time, but it thought that “a delay in process does not constitute deliberate indifference.” McGowan maintains that his complaint states a claim against Gardner and Chapman for deliberate indifference. He stresses that Gardner essentially forced him to have the molar extracted by falsely stating that fillings are not available to Menard inmates and then performed a “grossly deficient procedure.” Chapman, he continues, purposely delayed his treatment solely for economic reasons, leaving him now with permanent structural damage to his oral and nasal cavity. Our review of a dismissal under § 1915A for failure to state a claim is de novo. Santiago v. Walls, 599 F.3d 749, 755-56 (7th Cir.2010). The Eighth Amendment prohibits cruel and unusual punishment; that guarantee encompasses a prisoner’s right to medical care. It is well established that “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quotation marks and citation omitted). This principle applies equally to dental care. Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010). But negligence, even gross" }, { "docid": "22254103", "title": "", "text": "further from the mess hall. After a bench trial in January 1982, the district court found that medical treatment had been available for Shapley, but that he had not taken advantage of it. The court found no evidence of deliberate indifference to Shapley’s medical needs by prison officials or physicians. Shapley v. Wolff, No. CIV-R-78-217-ECR, slip op. at 27-28 (D.Nev. March 24, 1982). On July 5,1983, Shapley again filed a pro se civil rights complaint under section 1983 alleging deliberate indifference to his medical needs. He alleged two counts of medical indifference: (1) the denial of knee surgery from May 1978 to March 1983 (when Shapley’s knee was operated upon), which delay seriously aggravated his injury and resulted in permanent impairment, in violation of his eighth and fourteenth amendment rights; and (2) the imposition of a $3 fee for each medical visit, in violation of his first, fifth, eighth and fourteenth amendment rights. The State moved to dismiss the complaint on the grounds that Shapley had failed to state a claim for which relief could be granted or, in the alternative, that the action was frivolous under 28 U.S.C. § 1915(d). On December 21, 1983, the district court dismissed the complaint as frivolous under section 1915(d) because the issue of deliberate indifference to Shapley’s medical needs had been expressly litigated in the earlier action, and there was therefore no reasonable probability that Shapley would prevail on the merits. The court did not discuss Shapley’s second claim, that imposition of a $3 fee for each medical visit violated his constitutional rights. This appeal ensued. II. DISCUSSION We review district court dismissals of actions as legally frivolous pursuant to section 1915(d) under an abuse of discretion standard. Gifford v. Tiernan, 670 F.2d 882, 885 (9th Cir.), appeal dismissed and cert. denied, 459 U.S. 804, 103 S.Ct. 28, 74 L.Ed.2d 43 (1982). We examine the deliberate .medical indifference and fee imposition claims separately. A. Deliberate Medical Indifference The court below held that the deliberate medical indifference claim had been expressly litigated and decided at the 1982 trial, and that the bars of res" }, { "docid": "23653964", "title": "", "text": "Cir.1994) (denial and delay of care). Morales arguably pleaded facts sufficient to show a serious deprivation by alleging that he suffered constant, unreme-diated pain. However, the allegations of his complaint do not suggest adequately that defendants knew facts from which they could infer that absent further treatment or more prompt treatment, Morales faced serious harm. Because Morales’ allegation that he constantly complained of pain and other objectively unverifiable symptoms lacks any further factual context, e.g. dates of complaints and dates of treatment, descriptions of objectively observable symptoms, or results of diagnostic tests administered to him, they do not supply a basis for concluding that the defendants knew facts that would have alerted them to Morales’ need for treatment. Cf. McElligott v. Foley, 182 F.3d 1248, 1262-56 (11th Cir.1999) (holding that there was sufficient evidence to defeat a summary judgment motion on medical indifference where, among other things, prisoner frequently complained to prison employees of severe pain, prison employees observed him vomiting, and medical personnel noted that he had lost a significant amount of weight and “could not even tolerate liquids”). Nevertheless, “we cannot rule out the possibility that ... amendment [by this pro se plaintiff] will result in a claim being successfully pleaded” and therefore vacate the district court’s dismissal of Morales’ deliberate indifference claim in order that plaintiff may amend his complaint and the district court determine whether the amended complaint states a claim. Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir.1999) (per cu-riam). Defendants also urge that we should affirm the district court’s dismissal of Morales’ medical indifference claims against the defendants employed by the Central New York Psychiatric Center because Morales did not exhaust his administrative remedies for these claims. We believe it appropriate that the district court determine in the first instance after Morales files his amended complaint whether his failure to exhaust requires dismissal of his medical indifference claims. See Neal v. Goord, 267 F.3d 116, 119-20 (2d Cir.2001) (discussing circumstances under which a medical indifference claim must be exhausted). CONCLUSION For the reasons discussed, we affirm the district court’s judgment" }, { "docid": "13474382", "title": "", "text": "or policy. The court examines Plaintiffs’ § 1983 claims in three parts: (1) Plaintiffs’ personal liability claims against Individual Defendants; (2) Plaintiffs’ supervisory liability claims against Burgess, Hankins, and Lee; and (3) Plaintiffs’ Monell liability claim against Maui County. The court then turns to Plaintiffs’ state law claims. A. Plaintiffs’ § 1983 Claims Against Individual Defendants Plaintiffs allege § 1983 claims against Individual Defendants based on the Fourteenth Amendment as a result of these Defendants’ alleged deliberate indifference to Wereb’s medical needs. The court sets out the deliberate indifference framework and then applies that framework to each Defendant. 1. Deliberate Indifference of Medical Needs Framework Through the Fourteenth Amendment’s due process clause, pre-trial detainees are entitled to be free of cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 587 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017-18 (9th Cir.2010). Failure to provide medical treatment amounts to cruel and unusual punishment when (1) a detainee has a “serious medical need” and (2) detention officials are “deliberately indifferent” to that need. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006); Farmer v. Brennan, 511 U.S. 825, 834, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A serious medical need exists when, viewed objectively, “failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Jett, 439 F.3d at 1096 (citation and quotation omitted). Deliberate indifference requires that a detention official must “know[] of and disregard!] an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970. The test is a subjective one because “prison officials who lacked knowledge of a risk cannot be said to have inflicted punishment.” Id. at 844, 114 S.Ct. 1970. Accordingly, a plaintiff must show that an official was “(a) subjectively aware of the serious medical need and (b) failed adequately to" }, { "docid": "8625025", "title": "", "text": "OPINION PREGERSON, Circuit Judge: Plaintiff-Appellant David Pride is a California state prisoner. In an action brought under 42 U.S.C. § 1983, Pride claims that Defendants-Appellees, officials and employees of Calipatria Prison, violated his Eighth Amendment rights by acting with deliberate indifference towards his serious medical needs. He seeks damages and injunctive relief concerning his own individual medical treatment. The district court dismissed Pride’s claim for injunctive relief on the ground that Pride’s claim is already being provided for in the class action Plata v. Brown, No. C01-1351 THE, pending in the Northern District of California. We have jurisdiction under 28 U.S.C. § 1291. We reverse the district court’s dismissal of Pride’s claim for in-junctive relief. We hold that because Pride’s claim for injunctive relief concerns only his individual medical care, his claim is not already encompassed in the Plata litigation, which seeks systemic reform of medical care in California prisons. I. In his pro se complaint, Pride alleges that he has a permanent shoulder injury from prior gunshot wounds. He alleges that his shoulder was shattered by bullets and could not be fully mended. His gunshot injuries allegedly cause him significant pain and difficulty sleeping, and prevent him from exercising. Pride contends that he also has an old sports injury that causes his knee to slide out of joint, resulting in pain and swelling. The complaint further alleges that while Pride was a prisoner at Pelican Bay State Prison, a prison doctor examined him and prescribed him a double mattress and a knee brace for his injuries. Once Pride was transferred to Calipatria State Prison, he sought the same treatment from his treating physician, Dr. Santiago. Pride alleges that after conducting a medical examination, including a specific examination of his shoulder and knees, Dr. Santiago issued a chrono prescribing Pride knee braces and an egg crate mattress. Pride alleges, however, that a Chrono Committee reviewing Dr. Santiago’s chrono improperly denied the prescribed medical treatment. Pride asserts that because of the denial of medical care he is in constant pain and is unable to sleep. After exhausting his administrative remedies, Pride" }, { "docid": "23384723", "title": "", "text": "tooth extracted, but before his cleaning, he filed this section 1983 lawsuit for money damages against Brooks; the prison’s Chief Dental Officer, Dr. Dillard; and the Chief Medical Officer, Dr. Fitter. He claimed that their deliberate indifference to his serious medical needs violated his Eighth Amendment rights. See 42 U.S.C. § 1983. In the end, his claims amounted to a several-month delay in getting his teeth cleaned and an alleged failure to treat his pain. These claims went to trial, but after Peral-ta presented his case, the district court granted directed verdicts to Dillard and Fitter. The jury found for Brooks. Peral-ta challenges the jury instruction, as well as the judgment in favor of Dillard and Fitter. II. Discussion Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferent] to [a prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A medical need is serious if failure to treat it will result in “ ‘significant injury or the unnecessary and wanton infliction of pain.’ ” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997) (en banc)). A prison official is deliberately indifferent to that need if he “knows of and disregards an excessive risk to inmate health.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A. “Cost Defense” Jury Instruction The court instructed the jury that “[wjhether a dentist or doctor met his duties to Plaintiff Peralta under the Eighth Amendment must be considered in the context of the personnel, financial, and other resources available to him or her or which he or she could reasonably obtain.” The court also told the jury that “[a] doctor or dentist is not responsible for services which he or she could not render or cause to be rendered because the necessary personnel, financial, and other resources were not available ... or which he or she could not reasonably obtain.” We review a" }, { "docid": "22770048", "title": "", "text": "842, 114 S.Ct. 1970 (subjective prong may be met by showing that risk is sufficiently obvious that official “must have known” of it), and under Miltier, it is enough to state a claim of deliberate indifference, 896 F.2d at 853. See also Hudson v. McHugh, 148 F.3d 859, 863-64 (7th Cir.1998) (Farmer satisfied by allegation that prison officials knew of serious medical condition and need for treatment but nevertheless failed to provide treatment); Miller v. Schoenen, 75 F.3d 1305, 1310-11 (8th Cir.1996) (same). Our decision today does not address the ultimate merits of Jackson’s claim against Guleria, nor express any view about the likelihood that Jackson will prevail. We hold only that given the liberal construction we afford pro se complaints and the favorable light in which we review them under Rule 12(b)(6), Jackson’s allegations state a plausible claim of deliberate indifference as to Guleria. Accordingly, we vacate the district court’s dismissal of Jackson’s claim against Guleria and remand for further proceedings. IV. For the reasons set forth above, we affirm the judgment of the district court in part and vacate and remand in part. AFFIRMED IN PART AND VACATED AND REMANDED IN PART. . Jackson’s complaint, informal brief, and counseled briefs are inconsistent on this point. . Jackson's pro se status, of course, also favors a liberal construction of his notice of appeal. See United States v. Garcia, 65 F.3d 17, 19 (4th Cir.1995). But our holding, like those of the other circuits to address the question, is not restricted to pro se litigants. See Treto-Haro, 287 F.3d at 1002 n. 1 (omission by the federal government); Dillon, 184 F.3d at 558. .At oral argument, Jackson’s counsel suggested that the 2012 Order was incorporated by reference into the designated 2013 Order, and hence properly before us. That is incorrect. It is a separate document—the final judgment issued by the district court clerk dismissing Jackson's action in its entirety—■ that includes a reference to the 2012 Order. J.A. at 61. Whether designation of that final judgment in the notice of appeal might have evinced the requisite intent to appeal the" }, { "docid": "12527902", "title": "", "text": "MESKILL, Circuit Judge: Appeal from a judgment of the United States District Court for the Eastern District of New York, Trager, /., entered on July 26, 2004, dismissing pro se prisoner’s Eighth Amendment medical indifference claims against prison officials for failure to exhaust administrative remedies under the Prison Litigation Reform Act(PLRA), 42 U.S.C. § 1997e(a). Affirmed in part, and vacated and remanded in part. This appeal examines the scope of the PLRA exhaustion requirement. Plaintiff Juan Edgar Loera Macias is a pro se federal prisoner who alleges that Metropolitan Detention Center (MDC) defendants Warden Michael Zenk, Health Service Administrator Stephanie Middleton, Physician Assistant John Annessa, and Corrections Officer Joseph Parker, were negligent and deliberately indifferent to his medical needs in violation of the Eighth Amendment’s proscription on cruel and unusual punishment. Macias filed his pro se 42 U.S.C. § 1983 civil action in the United States District Court for the Southern District of New York. His case was transferred to the Eastern District of New York where Judge Trager dismissed Macias’ state law tort and Eighth Amendment claims for failure to exhaust his administrative remedies under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., and the PLRA. The district court’s judgment was entered before we decided a series of cases examining the PLRA’s exhaustion requirement. We vacate that judgment in part and remand to the district court to consider whether the threats Macias alleges he received rendered the United States Bureau of Prisons’ (BOP) administrative grievance procedures unavailable to him, or whether those threats estop defendants from raising Macias’ failure to exhaust as an affirmative defense. We affirm the district court’s judgment in all other respects. BACKGROUND For the purposes of this appeal, we discuss the facts as alleged by Macias. Macias entered the MDC on February 16, 2002 as a pre-trial detainee. MDC medical personnel examined him on March 15, 2002, March 19, 2002, April 5, 2002 and July 29, 2002. At these appointments Macias informed MDC personnel that in 2001 he had undergone arthroscopic surgery on his right knee. On October 8, 2002, while" }, { "docid": "23466659", "title": "", "text": "his complaint states a claim against Gardner and Chapman for deliberate indifference. He stresses that Gardner essentially forced him to have the molar extracted by falsely stating that fillings are not available to Menard inmates and then performed a “grossly deficient procedure.” Chapman, he continues, purposely delayed his treatment solely for economic reasons, leaving him now with permanent structural damage to his oral and nasal cavity. Our review of a dismissal under § 1915A for failure to state a claim is de novo. Santiago v. Walls, 599 F.3d 749, 755-56 (7th Cir.2010). The Eighth Amendment prohibits cruel and unusual punishment; that guarantee encompasses a prisoner’s right to medical care. It is well established that “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quotation marks and citation omitted). This principle applies equally to dental care. Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010). But negligence, even gross negligence, does not violate the Constitution. Estelle, 429 U.S. at 105-06, 97 S.Ct. 285; Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir.2009). Only deliberate indifference or worse in the face of a serious medical need will do. Estelle, 429 U.S. at 103-04, 97 S.Ct. 285; Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir.2008). A delay in treatment may constitute deliberate indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate’s pain. Estelle, 429 U.S. at 104-05, 97 S.Ct. 285; Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir.2010); Edwards v. Snyder, 478 F.3d 827, 832 (7th Cir.2007). There is no question that McGowan’s complaint sufficiently alleges a serious medical need. The issue here is whether the complaint also plausibly suggests that either Gardner or Chapman or both were deliberately indifferent to that need. We conclude that the district court was too hasty in dismissing the claim against Chapman, especially given its duty to construe McGowan’s pro se complaint liberally. See Erickson, 551 U.S. at 94, 127 S.Ct. 2197; Haines v. Kerner," }, { "docid": "22288151", "title": "", "text": "failure to administer CPR claim, concluding that each “deferred to the judgment of the medical staff members concerning whether CPR or other life-saving measures should be used on St. Jovite.” The district court held that these Defendants reasonably relied on the medical staff and therefore did not act with deliberate indifference to the medical needs of St. Jovite. As to MTA Hak, who was the first medical officer to arrive at the scene, the district court held that the evidence did not show that she was subjectively aware that St. Jovite could be revived before she stepped aside to allow RN Hill to assess St. Jovite. The district court further concluded that SRN Hicks and Dr. Noriega performed a medical assessment on St. Jovite and determined that he could not be revived and that Plaintiffs did not provide any evidence indicating that this assessment was inaccurate. The court concluded, therefore, that they did not act with deliberate indifference. “To set forth a constitutional claim under the Eighth Amendment predicated upon the failure to provide medical treatment, first the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction of pain. Second, a plaintiff must show the defendant’s response to the need was deliberately indifferent.” Conn, 591 F.3d at 1094-95 (internal quotation marks and citation omitted). The “deliberate indifference” prong requires “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006); Conn, 591 F.3d at 1095 (quoting Jett, 439 F.3d at 1096). “Indifference may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown in the way in which prison [officials] provide medical care.” Jett, 439 F.3d at 1096 (citations and internal quotations marks omitted). “[T]he indifference to [a prisoner’s] medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this [claim].” Broughton v. Cutter Labs., 622 F.2d 458, 460" }, { "docid": "22254102", "title": "", "text": "PER CURIAM: Billy R. Shapley, a Nevada state prisoner, appeals the district court’s dismissal of his complaint as frivolous under 28 U.S.C. § 1915(d). He contends that the district court erred in determining that res judicata and collateral estoppel rendered frivolous his claim that prison officials were deliberately indifferent to his medical needs by denying him surgery. He also claims that the district court erred in dismissing his action without discussing his allegation that the state violated his federally protected rights by charging $3 for each medical visit. We reverse on the deliberate medical indifference claim, and affirm on the fee imposition claim. I. BACKGROUND Shapley, an inmate at the Northern Nevada Correctional Center, injured his knee in 1978 while he was incarcerated. In 1981, he filed a pro se complaint under 42 U.S.C. § 1983 against various prison officials and employees, alleging several claims of medical indifference. He specifically alleged that prison, officials had improperly withheld medication, refused to deliver food to his room, and aggravated his condition by transferring him to a unit further from the mess hall. After a bench trial in January 1982, the district court found that medical treatment had been available for Shapley, but that he had not taken advantage of it. The court found no evidence of deliberate indifference to Shapley’s medical needs by prison officials or physicians. Shapley v. Wolff, No. CIV-R-78-217-ECR, slip op. at 27-28 (D.Nev. March 24, 1982). On July 5,1983, Shapley again filed a pro se civil rights complaint under section 1983 alleging deliberate indifference to his medical needs. He alleged two counts of medical indifference: (1) the denial of knee surgery from May 1978 to March 1983 (when Shapley’s knee was operated upon), which delay seriously aggravated his injury and resulted in permanent impairment, in violation of his eighth and fourteenth amendment rights; and (2) the imposition of a $3 fee for each medical visit, in violation of his first, fifth, eighth and fourteenth amendment rights. The State moved to dismiss the complaint on the grounds that Shapley had failed to state a claim for which relief could" }, { "docid": "418203", "title": "", "text": "his injuries. Second, appellant cites to several actions of prison officials — viz., the continuation of his maximum security classification, the denial of permission to consult an outside back specialist, and incidents of harassment by the medical staff — and characterizes them as acts of retaliation for his earlier lawsuit. In reviewing the dismissal of a pro se complaint for failure to state a claim, we must construe it liberally, Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), and consider the allegations — which we take as true, Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964) — in the light most favorable to the plaintiff. Harper v. Cserr, 544 F.2d 1121, 1122 (1st Cir. 1976). Dismissal is warranted “only if plaintiff is not entitled to relief under any set of facts he could prove.” Id., citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). This is not to say that pro se plaintiffs are not required to plead basic facts sufficient to state a claim. Leonardo v. Moran, 611 F.2d 397, 398 (1st Cir. 1979). We are inclined to concur with the lower court’s dismissal of appellant’s allegation that the inattention of prison doctors to his medical needs constituted cruel and unusual punishment proscribed by the eighth amendment. Under the two-pronged standard enunciated in Estelle, a cognizable eighth amendment claim must allege serious medical needs and “deliberate indifference” on the part of prison officials toward those needs. 429 U.S. at 104, 97 S.Ct. at 291. We do not dispute the seriousness of appellant’s references to continuing “great” back pain, “violent” headaches, dizziness and an inability to sleep. Compare Corby v. Conboy, 457 F.2d 251, 254 (2nd Cir. 1972) (alleged denial of treatment for “serious nasal problem” states 1983 claim). But an examination of the pleadings indicates that appellant’s challenge focuses upon the quality and the source of the medical treatment received. Rather than evidencing “deliberate indifference” to his medical needs on the part of the prison medical staff, these allegations simply" } ]

[ { "docid": "10665769", "title": "", "text": "any incentive for litigants of modest means to portray themselves as indigent. Second, the district court should consider the amount of costs, the good faith of the losing party, and the closeness and difficulty of the issues raised by a case when using its discretion to deny costs. No one factor is determinative, but the district court should provide an explanation for its decision to award or deny costs. See Chapman, 229 F.3d at 1039 (holding that a district court must have and state a sound basis for doing so); Cantrell v. Int’l Bhd. of Elec. Workers, 69 F.3d 456, 459 (10th Cir.1995) (holding that when a district court exercises its discretion and denies costs to a prevailing party, it must provide a valid reason for the denial). Though we decline to abolish the indigence exception, we note that the exception is a narrow one. Rule 54(d)(1) provides a presumption that costs are awarded to the prevailing party, and the burden is on the non-prevailing party to overcome this presumption. B. The City claims that the district court abused its discretion by denying its motion for costs. This Court reviews a denial of a motion for costs under Rule 54(d)(1) for an abuse of discretion. United States v. Santiago, 826 F.2d 499, 505 (7th Cir.1987). An abuse of discretion occurs “only when no reasonable person could take the view adopted by the trial court.” Id. At the outset, we note that the district court did not state the basis for its decision to deny costs. Rather, it summarily concluded that, “defendant’s [motion] for costs is denied, as plaintiff has made a sufficient showing of indigency and inability to pay costs.” The City claims that Rivera did not provide the district court with sufficient information for the court to determine that she is indigent. To prove her indigence, Rivera was required to show not only that she was incapable of paying court-ordered costs at the time they were imposed but also that she will be incapable of paying them in the future. McGill, 18 F.3d at 459. Rivera did not include" } ]

[ { "docid": "17599173", "title": "", "text": "that the evidence he wants to present is necessary for the court to conduct an informed evaluation of his claims. As already noted, Sun Life’s plan does not limit its participants’ rights to informed, independent review of benefit determinations by the courts, so the district court had discretion to “limit the evidence to the record before the plan administrator, or ... [to] permit the introduction of additional evidence necessary to enable it to make an informed and independent judgment.” Casey v. Uddeholm Corp., 32 F.3d 1094, 1099 (7th Cir.1994), citing Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1025 (4th Cir.1993). We review the denial of Patton’s motion for abuse of that discretion, Semien v. Life Ins. Co. of N. Am., 436 F.3d 805, 813 (7th Cir.2006); Vallone v. CNA Fin. Corp., 375 F.3d 623, 631 (7th Cir.2004), which is appropriate where the district court’s decision cannot be rationally based upon the record evidence, or is based on an erroneous legal conclusion, or is supported by clearly erroneous factual findings or clearly appears arbitrary, Vallone, 375 F.3d at 631. The district court must sufficiently explain its decision to show us that it considered the relevant factors and exercised its discretion. United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005). Numerous factors are relevant to the district court’s decision, the most central being the court’s need to hear the evidence in order to make an informed evaluation of the parties’ claims and defenses. In Casey v. Uddeholm Corp., 32 F.3d 1094 (7th Cir.1994), the plaintiff sued to recover benefits from the Uddeholm Health Benefits Plan for injuries he sustained in an attempt to commit suicide; the key question was whether the injuries were “sustained accidentally.” Id. at 1095-96. The plan administrator determined that injuries from a suicide attempt could never be accidental, but the district court disagreed, holding that the injuries could have been accidental if Casey had been insane at the time of the attempt. Id. at 1096-97. The district court then granted summary judgment to Uddeholm on the ground that Casey had not been insane." }, { "docid": "17599176", "title": "", "text": "“informed and independent judgment” on the parties’ claims and defenses, which will obviously depend on the nature of the claims and whether the administrative record was “relatively undeveloped” with respect to those claims. Most other courts that share our discretionary approach to new evidence agree. Hall v. Unum Life Ins. Co. of Am., 300 F.3d 1197, 1202 (10th Cir.2002) (holding that the record should be expanded “when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision”); Donatelli v. Home Ins. Co., 992 F.2d 763, 765 (8th Cir.1993) (same); Luby v. Teamsters Health, Welfare & Pension Trust Funds, 944 F.2d 1176, 1185 (3d Cir.1991) (“If the record on review is sufficiently developed, the district court may, in its discretion, merely conduct a de novo review of the record of the administrator’s decision.”). Other factors are also relevant. Courts have suggested, for instance, that the district court may wish to consider whether the evidence the parties seek to introduce would concern plan terms or historical facts concerning the claimant, whether the plan administrator faced a conflict of interest and, as Sun Life notes, whether the parties had a chance to present their evidence in the ERISA administrative proceeding. Quesinberry, 987 F.2d at 1027. But no factor is necessarily determinative in any particular case. The district court must take the relevant factors into consideration and provide a reasonable explanation for its decision; so long as it does so, its decision will be affirmed. Reversals will be rare. The present case, however, is one of the rare ones. To begin with, the district court failed to adequately explain its decision. In making a discretionary decision, a court must present an explanation for its choice sufficient to enable a reviewing court to determine that it did not act thoughtlessly, but instead considered the factors relevant to its decision and in fact exercised its discretion. Rivera v. City of Chicago, 469 F.3d 631, 635-36 (7th Cir.2006); United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005); Vergara-Molina v. INS, 956 F.2d 682, 685 (7th Cir.1992). The" }, { "docid": "3884635", "title": "", "text": "record but also his decades-long criminal conduct. The judge addressed deterrence-, both specific and general, and said that a Guideline sentence would not be adequate as a deterrent to this crime. He said he had taken into consideration all the mitigating factors that the defense had set forth in the memorandum, which he had reviewed in detail with counsel earlier in the hearing. As noted, the sentence was the longest possible under the plea agreement: maximum consecutive sentences for a total of 276 months (twenty-three years) in prison. Castaldi’s principal argument on appeal is that the judge made a procedural error by failing to address what he now calls his principal argument in mitigation, his voluntary disclosure of the offense and his efforts to help the government with its investigation. Perhaps the most frequently argued issue on our docket in recent years is whether a district judge provided a sufficient explanation for rejecting a convicted defendant’s arguments in mitigation at sentencing. As one rough measure, our key case on the issue is United States v. Cunningham, 429 F.3d 673 (7th Cir.2005), and as of February 19, 2014, we had cited Cunningham in 197 later opinions and orders. The vast majority of citations concern this issue. When a district court must exercise its discretion, it ordinarily must provide enough of an explanation to allow a reviewing court to see that the court actually exercised that discretion by considering the relevant factors. Cunningham, 429 F.3d at 679. “A judge who fails to mention a ground of recognized legal merit (provided it has a factual basis) is likely to have committed an error or oversight.” Id. At the same time, the judge need not address arguments that have no apparent merit, and need not spend time addressing an argument if “anyone acquainted with the facts would have known without being told why the judge had not accepted the argument.” Id. We have applied the Cunningham standard many times, both to remand sentences and to affirm them. Compare, e.g., United States v. Johnson, 643 F.3d 545, 549 (7th Cir.2011) (remanding; court failed to address" }, { "docid": "3884636", "title": "", "text": "Cunningham, 429 F.3d 673 (7th Cir.2005), and as of February 19, 2014, we had cited Cunningham in 197 later opinions and orders. The vast majority of citations concern this issue. When a district court must exercise its discretion, it ordinarily must provide enough of an explanation to allow a reviewing court to see that the court actually exercised that discretion by considering the relevant factors. Cunningham, 429 F.3d at 679. “A judge who fails to mention a ground of recognized legal merit (provided it has a factual basis) is likely to have committed an error or oversight.” Id. At the same time, the judge need not address arguments that have no apparent merit, and need not spend time addressing an argument if “anyone acquainted with the facts would have known without being told why the judge had not accepted the argument.” Id. We have applied the Cunningham standard many times, both to remand sentences and to affirm them. Compare, e.g., United States v. Johnson, 643 F.3d 545, 549 (7th Cir.2011) (remanding; court failed to address argument based on crack powder cocaine ratio); United States v. Villegas-Miranda, 579 F.3d 798, 801-02 (7th Cir.2009) (remanding; court failed to address argument for concurrent state and federal sentences); and United States v. Miranda, 505 F.3d 785, 792-94 (7th Cir.2007) (remanding; court failed to address argument based on severe mental illness); with United States v. Spiller, 732 F.3d 767, 769 (7th Cir.2013) (affirming; record showed sentencing court considered mitigation arguments “even if implicitly and imprecisely”); United States v. Stinefast, 724 F.3d 925, 931-32 (7th Cir. 2013) (affirming; court acknowledged mitigation argument and rejected it briefly but expressly); United States v. Gary, 613 F.3d 706, 709-10 (7th Cir.2010) (affirming; court implicitly considered family circumstances arguments by sentencing husband and wife so that they would serve sentences in sequence); United States v. Diekemper, 604 F.3d 345, 355 (7th Cir.2010) (affirming court acknowledged argument, which was sufficient to show consideration at least “implicitly and imprecisely”); and United States v. Poetz, 582 F.3d 835, 837-40 (7th Cir.2009) (affirming; “totality of the record” showed that judge considered defendant’s mitigation arguments" }, { "docid": "13170755", "title": "", "text": "court’s comment that it was not “required to assign a value to it as part of 3553(a).” A sentencing court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We have ordered resentencing in a number of cases where district courts failed to address a defendant’s substantial argument in mitigation. E.g., United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005) (remanding where district court “passed over in silence” the defendant’s principal argument in mitigation); United States v. Villegas-Miranda, 579 F.3d 798, 801-02 (7th Cir.2009) (same). At the same time, when considering such challenges to sentencing explanations, we try to take careful note of context and the practical realities of a sentencing hearing. District judges need not belabor the obvious. The judge need not be explicit where “anyone acquainted with the facts would have known without being told why the judge had not accepted the argument,” United States v. Cunningham, 429 F.3d at 679, and “stock” arguments in mitigation often can be rejected with little or even no explanation. For example, we said in United States v. Tahzib, 513 F.3d 692, 695 (7th Cir.2008), that the sentencing court was free to reject without discussion “stock arguments” in mitigation that sentencing courts see routinely, including a routine family-ties argument. Accord, e.g., United States v. Poetz, 582 F.3d 835, 839 (7th Cir.2009) (no error where totality of record showed that district court implicitly considered argument based on family circumstances); United States v. Mendoza, 576 F.3d 711, 722 (7th Cir.2009) (district court sufficiently considered stock argument that sentence would lead to deportation and family separation); United States v. Millet, 510 F.3d 668, 680 (7th Cir.2007) (district court provided adequate discussion of reasons for sentence). A court is not required to touch upon every § 3553(a) factor in its explanation as long as “the record confirms meaningful consideration of the types of factors that section 3553(a) identifies.” United States v. Laufle, 433 F.3d 981, 987 (7th Cir.2006). In" }, { "docid": "22759366", "title": "", "text": "the sentencing hearing. But whatever the precise scope of the rule, the judge’s failure to discuss an immaterial or insubstantial dispute relating to the proper sentence would be at worst a harmless error. United States v. Slaughter, 900 F.2d 1119, 1123 (7th Cir.1990); United States v. Darwich, 337 F.3d 645, 666 (6th Cir.2003). It would not require resentencing. Rule 32 to one side, whenever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise. Carr v. O’Leary, 167 F.3d 1124, 1127 (7th Cir.1999) (“a discretionary ruling ... cannot be upheld when there is no indication that the judge exercised discretion”); United States v. Hale, supra, 107 F.3d at 530; Vergara-Molina v. INS, 956 F.2d 682, 685 (7th Cir.1992); United States v. Hadash, 408 F.3d 1080, 1083-84 (8th Cir.2005); Rarogal v. INS, 42 F.3d 570, 572 (9th Cir.1994). A rote statement that the judge considered all relevant factors will not always suffice; the temptation to a busy judge to impose the guidelines sentence and be done with it, without wading into the vague and prolix statutory factors, cannot be ignored. We cannot have much confidence in the judge’s considered attention to the factors in this case, when he passed over in silence the principal argument made by the defendant even though the argument was not so weak as not to merit discussion, as it would have been if anyone acquainted with the facts would have known without being told why the judge had not accepted the argument. Diminished mental capacity is a ground stated in the sentencing guidelines themselves for a lower sentence. U.S.S.G. § 5K2.13. A judge who fails to mention a ground of recognized legal merit (provided it has a factual basis) is likely to have committed an error or oversight. There is also the judge’s precipitate reliance on the government’s unexplained, unsubstantiated reference to Cunningham’s supposed failure to cooperate," }, { "docid": "20794284", "title": "", "text": "the unaddressed argument made by the lawyer in the district court was that Donelli had a serious mental health disability. Donelli asserts that the court’s procedural error also resulted in a prison term that is substantively unreasonable. Donelli does not otherwise challenge the above-guideline sentence as unreasonable. We conclude first that the lawyer’s assertion at sentencing that Donelli’s bipolar II disorder was “not an excuse but an explanation” for her crimes was not a developed “principal argument” that the district court was required to address. Second, even if the court had a duty to respond, Donelli’s failure to object to the omission when the court asked about the sufficiency of the explanation at the close of the sentencing hearing forecloses her argument on appeal. A. The Cunningham, Duty When pronouncing sentence, the district court generally must comment on what we have called a defendant’s “principal arguments in mitigation.” See, e.g., United States v. Garcia-Segura, 717 F.3d 566, 568 (7th Cir.2013); United States v. Schmitz, 717 F.3d 536, 541 (7th Cir.2013). Although sentencing is an exercise of the district court’s discretion, a reviewing court must be able to satisfy itself that the district court actually exercised its discretion. Cunningham, 429 F.3d at 679. Cunningham imposes a procedural requirement. It does not constrain the district court’s discretion in deciding upon a reasonable sentence under the broad guidance of 18 U.S.C. § 3553(a). This procedural requirement is designed to ensure that the judge has in fact considered the principal issues affecting the sentencing decision. The requirement is based on the view that a “judge who fails to mention a ground of recognized legal merit (provided it has a factual basis) is likely to have committed an error or oversight.” Cunningham, 429 F.3d at 679. The district court did not fail to comply with its Cunningham duty. Do-nelli did not present her mental health diagnosis as part of an argument that triggered the court’s duty to respond. Where the effect is not otherwise obvious, a defendant relying on a personal characteristic as a mitigating factor must offer a cogent argument as to why that" }, { "docid": "17599178", "title": "", "text": "court need riot mechanically list factors or address all the parties’ arguments, but a sufficiently strong argument merits discussion and a reviewing court cannot conclude that discretion was exercised when a strong argument is “passed over in silence.” Cunningham, 429 F.3d at 679. That is precisely what happened here. Patton’s argument for reopening discovery was compelling. It was late by the terms of the case management order, so Patton needed an excuse for his tardiness. See, e.g., Rossetto v. Pabst Brewing Co., 217 F.3d 539, 542 (7th Cir.2000). But he had one: prior to the Diaz decision, the parties had not realized that the district court might have authority to hear additional evidence. The case could clearly have benefitted from having the gaps in the record filled, particularly those concerning Dr. Ambrose and his various communications. Nonetheless, the district court' denied Patton’s motion to reopen discovery without explanation. Additionally, and distressingly, the court specifically indicated that it was not at that time deciding whether de novo review applied to Patton’s claim, and consequently whether it could hear new evidence. We cannot conclude that the district court exercised its discretion when it silently ignored a strong case for expanding the record while explicitly reserving whether it even had discretion to exercise. This alone merits a remand for the court to properly exercise its discretion with respect to Patton’s motion. Because the issue is before us, however, we go further: assuming the district court did exercise its discretion in refusing to grant Patton’s motion, that discretion was abused. Generally, it is very hard to say that the district court abused its discretion in deciding not to hear additional evidence in an ERISA case. A court should not automatically admit new evidence whenever it would help to reach, an accurate decision. Any relevant, probative evidence increases the likelihood of an accurate decision, but always at the price of increased cost, both in the form of more money and additional time. See Quesinberry, 987 F.2d at 1023, citing Perry v. Simplicity Engineering, 900 F.2d 963, 966-67 (6th Cir.1990). The record calls for additional evidence" }, { "docid": "17599174", "title": "", "text": "appears arbitrary, Vallone, 375 F.3d at 631. The district court must sufficiently explain its decision to show us that it considered the relevant factors and exercised its discretion. United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005). Numerous factors are relevant to the district court’s decision, the most central being the court’s need to hear the evidence in order to make an informed evaluation of the parties’ claims and defenses. In Casey v. Uddeholm Corp., 32 F.3d 1094 (7th Cir.1994), the plaintiff sued to recover benefits from the Uddeholm Health Benefits Plan for injuries he sustained in an attempt to commit suicide; the key question was whether the injuries were “sustained accidentally.” Id. at 1095-96. The plan administrator determined that injuries from a suicide attempt could never be accidental, but the district court disagreed, holding that the injuries could have been accidental if Casey had been insane at the time of the attempt. Id. at 1096-97. The district court then granted summary judgment to Uddeholm on the ground that Casey had not been insane. Id. at 1099. On appeal this court reversed, holding that there were genuine issues of material fact forestalling summary judgment, and then addressed whether the district court should be able to hear additional evidence on remand: In Quesinberry v. Life Ins. Co. of North America, 987 F.2d 1017, 1025 (4th Cir.1998) the Sixth Circuit [sic] held that a district court may review evidence beyond that which was before the plan administrator only when circumstances clearly establish that additional evidence is necessary, but that as a general matter the district court should restrict itself to the evidence before the plan administrator. In this case the record before the plan administrator was relatively undeveloped. Therefore, in its de novo review the district court may limit the evidence to the record before the plan administrator, or it may permit the introduction of additional evidence necessary to enable it -to make an informed and independent judgment. 32 F.3d at 1099. The most important factor for the district court, therefore, seems to be whether the evidence is “necessary” to an" }, { "docid": "23362402", "title": "", "text": "addressing every section 3553(a) factor and/or by failing to respond to each of his arguments for a lower sentence in detail. Id. Dean and Cunningham foreclosed these questions; the court need not discuss each section 3553(a) factor at sentencing and need not respond to every pithy argument that a defendant raises, just the “principal” ones. Dean, 414 F.3d at 729; Cunningham, 429 F.3d at 676-79 (citing United States v. Williams, 425 F.3d 478, 479 (7th Cir. 2005)). Villegas-Miranda’s argument on appeal, however, is not that the court did not adequately state its reasons for imposing his sentence, but rather that it failed to specifically address his principal argument for a lower sentence. Cunningham addresses this question as well. The court must state its reasons for rejecting a defendant’s principal arguments if the arguments have merit. Cunningham, 429 F.3d at 679 (“We cannot have much confidence in the judge’s considered attention to the factors in this case, when he passed over in silence the principal argument made by the defendant even though the argument was not so weak as not to merit discussion, as it would have been if anyone acquainted with the facts would have known without being told why the judge had not accepted the argument.... A judge who fails to mention a ground of recognized legal merit (provided it has a factual basis) is likely to have committed an error or oversight.”). Even if the sentencing court stated convincing reasons for the sentence it imposed, we cannot find its silence in response to a defendant’s principal argument to be harmless error because we can never be sure of what effect it had, or could have had, on the court’s decision. Id. Given that there is no dispute that Villegas-Miranda’s “concurrent sentences” argument was one of his two principal arguments, if it “was not so weak as to not merit discussion,” the sentencing court was required to respond to it. See id. Although the district court listened at length to VillegasMiranda’s “concurrent sentences” argument, we cannot take on faith that it adequately considered the argument where it “passed it" }, { "docid": "4834197", "title": "", "text": "The amount of explanation needed in any particular case depends on the circumstances, United States v. Harris, 567 F.3d 846, 853 (7th Cir.2009), United States v. Poetz, 582 F.3d 835, 838 (7th Cir.2009), and “[l]ess explanation is typically needed when a district court sentences within an advisory guidelines range,” Harris, 567 F.3d at 854. Here, the district court sentenced Curby at the very bottom of the range. Accordingly, extensive discussion was unnecessary. Curby relies on a line of cases from this circuit where we remanded for resentencing. But the cited decisions do not support his argument. In Cunningham, the defendant argued at sentencing — like Cur-by — that his psychiatric problems (and substance abuse) warranted a below-guidelines sentence, but the district court did not mention those impairments when it imposed a sentence at the bottom of the recommended range. Cunningham, 429 F.3d at 678. We explained: We cannot have much confidence in the judge’s considered attention to the factors in this case, when he passed over in silence the principal argument made by the defendant even though the argument was not so weak as not to merit discussion, as it would have been if anyone acquainted with the facts would have known without being told why the judge had not accepted the argument. Diminished mental capacity is a ground stated in the sentencing guidelines themselves for a lower sentence. U.S.S.G. § 5K2.13. A judge who fails to mention a ground of recognized legal merit (provided it has a factual basis) is likely to have committed an error or oversight. Cunningham, 429 F.3d at 679 (emphasis added). Unlike in Cunningham, here, the district court did not pass over in silence, or fail to mention, Curby’s argument. The district court specifically noted that it had considered “the mitigating circumstances which are set forth in the defendant’s sentencing memorandum and Dr. Moran’s report.” Our opinion in Cunningham does not help Curby because in Cunningham the point of inquiry was whether or not the district court had considered the defendant’s arguments — whether the judge had “exercised his discretion.” Cunningham, 429 F.3d at 679." }, { "docid": "22201007", "title": "", "text": "of discretion. In such cases, we stated, the court’s failure to give reasons for its decision would leave us “in a zone of speculation” on appellate review. Rose, 185 F.3d at 1112 (internal quotation omitted). We further stated that it is not “consistent with our appellate function” “simply to assume” what the district court’s reasons might be in such cases. Zanghi, 209 F.3d at 1205. The Seventh Circuit has applied the same reasoning to its review of sentences imposed post -Booker, where the district court must similarly exercise its discretion in determining a reasonable sentence in light of the § 3553(a) factors. United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005) (observing that “whenever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to satisfy ourselves ... that he exercised his discretion, that is, that he considered the factors relevant to that exercise”). In Cunningham, although the district court had stated that it had considered the § 3553(a) factors, the appellate court held that its “rote statement” was insufficient when the court had “passed over in silence the principal argument made by the defendant even though the argument was not so weak as not to merit discussion.” Id.; see also Cooper, 437 F.3d at 329 (adopting Cunningham rule). The government argues that the question of the adequacy of the district court’s explanation “ha[s] been rendered moot” by our decision in Kristl, 437 F.3d at 1054, that a sentence within the Guidelines is entitled to a presumption of reasonableness. Appellee’s Br. at 22. However, we do not believe our recognition of a procedural requirement that a district court must state reasons for its rejection of a party’s nonfrivolous motion is incompatible with the presumption that a sentence is reasonable in a substantive sense. See McBride, 434 F.3d at 476 n. 3 (distinguishing “substantive and procedural components” of reasonableness review). The district court record remains important to our review even applying the presumption. A district court’s explanation will assist us in our determination of whether a party has successfully rebutted the presumption" }, { "docid": "23127581", "title": "", "text": "2465. See also United States v. Wallace, 458 F.3d 606, 609 (7th Cir.2006) (on appellate review of a sentence, the procedural inquiry focuses on the actual reasons given, not on whether the sentence could have been supported by a different rationale). Miranda first contends that the district court failed to consider or make findings with respect to the psychiatric evidence and its relevance under the section 3553(a) factors. Miranda also argues that when the court did mention Miranda’s mental illness, the court did not discuss how that illness related to the section 3553(a) factors and instead substituted its own ideas about mental illness. When a defendant challenges a within-guidelines sentence as unreasonable, the judge must explain why the sentence imposed is appropriate in light of the section 3553(a) factors. Robinson, 435 F.3d at 701; United States v. Cunningham, 429 F.3d 673, 678 (7th Cir.2005). A judge need not comment on every argument the defendant raises. “[Ajrguments clearly without merit can, and for the sake of judicial economy should, be passed over in silence.” Cunningham, 429 F.3d at 678. But when a court gives little or no attention to the defendant’s principal argument when that argument “was not so weak as not to merit discussion,” we cannot have confidence that the judge adequately considered the section 3553(a) factors. Cunningham, 429 F.3d at 679. “[I]f anyone acquainted with the facts would have known without being told why the judge had not accepted the argument,” then the judge need not specifically comment on that argument. Id. Such was not the case here. Anyone acquainted with the facts of Miranda’s well-documented mental health history would not know why the district court rejected his arguments for a lesser sentence unless the court commented on its reasons. Miranda’s severe mental illness (and in particular his diagnosis of Schizoaf-fective Disorder) is a recognized ground for departing from the normal guidelines range. Sentencing Guideline 5K2.13 recognizes diminished capacity as a ground for a downward departure. Cunningham, 429 F.3d at 679. The concept of departures has been rendered obsolete in post-Booker sentencing but the district court may apply those" }, { "docid": "4837880", "title": "", "text": "plea a nolo plea and exercised its discretion to reject it under Rule 11(a)(3). Some of these reasons might constitute a satisfactory basis for rejecting defendant’s plea, but others would not. The record sheds no light on which of these possibilities, if any, was the court’s actual reason for rejecting the plea, and therefore we cannot determine whether the court abused its discretion. This is not a case in which we may affirm so long as any ground for affirming appears in the record. So although it is possible that the district court properly exercised its discretion, such possibility does not enable us to affirm. When a district court makes a discretionary decision, we will affirm so long as the decision is within the range of permissible decisions that the court could have made given the law and the facts confronting it. But before we can be sure that the district court’s choice falls within that range, we need to be certain that the district court applied the proper law, considered all the relevant factors, and actually exercised its discretion. See United States v. Cunningham, 429 F.3d 673, 679(7th Cir.2005) (“[Wjhenever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise.”). In short, when we review for abuse of discretion, we necessarily review the district court’s decision-making process, not simply whether the decision resulted in a permissible outcome. The dissent characterizes defendant’s plea as a hybrid of an Alford and a nolo plea. Diss. Op. at 689, n. 2 & 690, n. 5. Relying on United States v. Buonocore, 416 F.3d 1124, 1129-31 (10th Cir.2005), the dissent then argues that a judge may adopt a policy of never accepting Alford or nolo pleas and thus may reject either type of plea (or a hybrid) without stating any reason. But even assuming that a judge may adopt a policy of refusing to" }, { "docid": "22718604", "title": "", "text": "the kinds of sentence and the sentencing range established for ... the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines.... 18 U.S.C. § 3553(a). The record must demonstrate the trial court gave meaningful consideration to the § 3553(a) factors. See United States v. Williams, 425 F.3d 478, 480 (7th Cir.2005). The court need not discuss every argument made by a litigant if an argument is clearly without merit. Cunningham, 429 F.3d at 678. Nor must a court discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing. Williams, 425 F.3d at 480; see United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.2005) (holding “nothing in Booker or elsewhere requires the district court to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors”). Nor will we require district judges to routinely state by rote that they have read the Booker decision or that they know the sentencing guidelines are now advisory. On the other hand, a rote statement of the § 3553(a) factors should not suffice if at sentencing either the defendant or the prosecution properly raises “a ground of recognized legal merit (provided it has a factual basis)” and the court fails to address it. Cunningham, 429 F.3d at 679. As the Court of Appeals for the Seventh Circuit explained, “we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise.” Id.; cf. United States v. Johnson, 388 F.3d 96, 101 (3d Cir.2004) (holding “there is no way to review [a court’s] exercise of discretion” if it “does not articulate the reasons underlying its decision” and the court’s reasons “are not otherwise apparent from the record”) (quoting Becker v. ARCO Chem. Co., 207 F.3d 176, 180-81 (3d Cir.2000)). At least one court has held a sentencing judge" }, { "docid": "22160938", "title": "", "text": "fails to address it. As the Court of Appeals for the Seventh Circuit explained, “we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise.” 437 F.3d at 329 (citations omitted) (quoting United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005)). In a footnote immediately following this discussion, we said: “On this issue, we disagree with the decision of the Court of Appeals for the Eleventh Circuit in United States v. Scott, [426 F.3d 1324, 1329-30 (11th Cir.2005),] where the court held [that] a district court’s statement that it considered both the defendant’s arguments and the § 3553(a) factors at sentencing is by itself sufficient for Booker purposes.” Cooper, 437 F.3d at 329 n. 6. Instead, the record must show a true, considered exercise of discretion on the part of a district court, including a recognition of, and response to, the parties’ non-frivolous arguments. See United States v. Charles, No. 05-5326, 2006 WL 3231396, 467 F.3d 828, 837-38 (3d Cir.2006). Jackson argues that the District Court here failed to consider adequately the § 3553(a) factors and to explain how it determined Jackson’s sentence in light of those factors and his counsel’s arguments relating to them. He claims that had the Court properly done so, it would have chosen to vary from the recommended Guidelines range when imposing his sentence. The rote recitation of the § 3553(a) factors at the outset of the sentencing hearing, claims Jackson, does not show that the Court truly weighed his arguments in light of those factors. This point of error implicates Gunter’s third step. If the record revealed only what Jackson contends, he would be correct. Merely reciting the § 3553(a) factors, saying that counsel’s arguments have been considered, and then declaring a sentence, are insufficient to withstand our reasonableness review. See id. at 329 & n. 6. In Jackson’s case, however, the District Court in fact addressed both of the arguments his counsel raised in support of a variance from the" }, { "docid": "17096242", "title": "", "text": "offense in light of his intervening evidence of self-motivated rehabilitation. Here too, the court’s silence warrants remand. A sentencing court need not comprehensively discuss each of the factors listed in 18 U.S.C. § 3553(a), but it must give the reasons for its sentencing decision and address all of a defendant’s principal arguments that “are not so weak as not to merit discussion.” United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005); United States v. Kilgore, 591 F.3d 890, 893 (7th Cir.2010) (“In determining a reasonable sentence, the district court need not comprehensively discuss all of the 18 U.S.C. § 3553(a) factors, but must explain its decision and address nonfrivolous sentencing arguments.”). Substantial and reliable evidence of genuine rehabilitation presents a non-frivolous argument for imposing a sentence below the Guideline range. See Pepper, 131 S.Ct. at 1235; Gall, 552 U.S. at 57, 128 S.Ct. 586. Such arguments must be properly addressed and weighed by the sentencing court. A sentencing court’s consideration of a defendant’s non-frivolous arguments in favor of mitigation certainly may be brief, but it must also be meaningful. As we explained in Cunningham: “Whenever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise.” 429 F.3d at 679. Here, we cannot determine whether the sentencing judge abused his discretion by, for example, overemphasizing the seriousness of the Robertsons’ offense or Henry’s criminal history or underemphasizing their rehabilitation in balancing the § 3553(a) factors, because it is not apparent from the sentencing transcript that such a balancing took place. Accordingly, we vacate and remand for resentencing. On remand, the district court may not revisit the original guideline calculations using the 2010 Sentencing Guidelines. However, the court may consider the differences between the 1998 Guidelines and the 2010 Guidelines as part of its consideration of the § 3553(a) factors, and the court should carefully weigh and explain its consideration of the" }, { "docid": "23362401", "title": "", "text": "of a defendant’s principal arguments that “are not so weak as to not merit discussion.” United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005). The government first contends, relying on United States v. Millet, 510 F.3d 668 (7th Cir.2007), that because the district court gave sound reasons for its within-Guidelines sentence (Villegas-Miranda’s criminal history and repeated illegal reentry into the United States), its failure to address Villegas-Miranda’s “concurrent sentences” argument does not merit remand. In Millet, we found that a sentencing court gave an adequate statement of its reasons for issuing a within-Guidelines sentence, for drug and conspiracy offenses, even though it did not address each of the defendant’s arguments for a below-Guidelines sentence in detail or specifically address each of the section 3553(a) factors because, among other things, the court’s statements as a whole indicated beyond a doubt that it considered all of the section 3553(a) factors. Id. at 679-80. Contrary to the government’s assertion, Millet does not control here. Millet’s argument on appeal was that the sentencing court erred by not specifically addressing every section 3553(a) factor and/or by failing to respond to each of his arguments for a lower sentence in detail. Id. Dean and Cunningham foreclosed these questions; the court need not discuss each section 3553(a) factor at sentencing and need not respond to every pithy argument that a defendant raises, just the “principal” ones. Dean, 414 F.3d at 729; Cunningham, 429 F.3d at 676-79 (citing United States v. Williams, 425 F.3d 478, 479 (7th Cir. 2005)). Villegas-Miranda’s argument on appeal, however, is not that the court did not adequately state its reasons for imposing his sentence, but rather that it failed to specifically address his principal argument for a lower sentence. Cunningham addresses this question as well. The court must state its reasons for rejecting a defendant’s principal arguments if the arguments have merit. Cunningham, 429 F.3d at 679 (“We cannot have much confidence in the judge’s considered attention to the factors in this case, when he passed over in silence the principal argument made by the defendant even though the argument was not" }, { "docid": "23654654", "title": "", "text": "resentencing. Id. The Roberson court noted that in a previous case, we remanded where “we could not determine from the record whether the district court was aware of its authority to grant a downward departure....\" Id. (citing United States v. Lewis, 249 F.3d 793, 795 (8th Cir.2001)). And in Roberson, the district court’s silence left “unclear” its reasons for not varying from the crack cocaine guidelines. Id. Likewise here, we simply do not know whether the busy district court chose not to exercise its discretion, or, presented with numerous arguments at sentencing, simply neglected to consider Bowie’s motion. The Seventh Circuit has explained why district courts need at least “address all of a defendant’s principal arguments.” United States v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir.2009). “We cannot have much confidence in the judge’s considered attention to the factors in this case, when he passed over in silence the principal argument made by the defendant even though the argument was not so weak as not to merit discussion....” Id. at 801-02 (quoting United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005)). “A judge who fails to mention a ground of recognized legal merit ... is likely to have committed an error or oversight. Even if the sentencing court stated convincing reasons for the sentence it imposed ... silence in response to a defendant’s principal argument [is not] harmless error because we can never be sure of what effect it had, or could have had, on the court’s decision.” Id. at 802 (quotation and parenthesis omitted). To be sure, our circuit does not require a sentencing court to respond to every argument advanced by a defendant. See Roberson, 517 F.3d at 995. But neither does the Seventh Circuit. See Cunningham, 429 F.3d at 678. Bowie’s request for a variance on the basis of the crack/powder disparity in the guidelines merited discussion, and we should not affirm the district court’s silence on this important issue. The presentation by defense called for reasons, not silence. 2. Defendant Edwards With respect to Edwards, the district court explicitly explained its decision not to exercise" }, { "docid": "17599177", "title": "", "text": "the claimant, whether the plan administrator faced a conflict of interest and, as Sun Life notes, whether the parties had a chance to present their evidence in the ERISA administrative proceeding. Quesinberry, 987 F.2d at 1027. But no factor is necessarily determinative in any particular case. The district court must take the relevant factors into consideration and provide a reasonable explanation for its decision; so long as it does so, its decision will be affirmed. Reversals will be rare. The present case, however, is one of the rare ones. To begin with, the district court failed to adequately explain its decision. In making a discretionary decision, a court must present an explanation for its choice sufficient to enable a reviewing court to determine that it did not act thoughtlessly, but instead considered the factors relevant to its decision and in fact exercised its discretion. Rivera v. City of Chicago, 469 F.3d 631, 635-36 (7th Cir.2006); United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005); Vergara-Molina v. INS, 956 F.2d 682, 685 (7th Cir.1992). The court need riot mechanically list factors or address all the parties’ arguments, but a sufficiently strong argument merits discussion and a reviewing court cannot conclude that discretion was exercised when a strong argument is “passed over in silence.” Cunningham, 429 F.3d at 679. That is precisely what happened here. Patton’s argument for reopening discovery was compelling. It was late by the terms of the case management order, so Patton needed an excuse for his tardiness. See, e.g., Rossetto v. Pabst Brewing Co., 217 F.3d 539, 542 (7th Cir.2000). But he had one: prior to the Diaz decision, the parties had not realized that the district court might have authority to hear additional evidence. The case could clearly have benefitted from having the gaps in the record filled, particularly those concerning Dr. Ambrose and his various communications. Nonetheless, the district court' denied Patton’s motion to reopen discovery without explanation. Additionally, and distressingly, the court specifically indicated that it was not at that time deciding whether de novo review applied to Patton’s claim, and consequently whether it" } ]

[ { "docid": "505018", "title": "", "text": "on the use of property, even though the restrictions result in serious financial loss to the owner. Krieger v. Planning Commission of Howard County, 224 Md. 320, 167 A.2d 885. See also Euclid, Ohio v. Ambler Realty Company, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, and Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L. Ed. 27. Highway plans, similar to the plan in question here, are within the police power. State ex rel. Miller v. Manders, 2 Wis.2d 365,86 N.W.2d 469; Headley v. City of Rochester, 272 N.Y. 197, 5 N.E.2d 198. See also Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228. In the light of these authorities, it is clear that the Montgomery County ordinance is not unconstitutional on its face. The question remains whether it has been so applied in this case as to render it unconstitutional. A zoning ordinance which permanently restricts the use of property so that it cannot be used for any reasonable purpose goes beyond permissible regulation and must be regarded as a taking of property without just compensation. Congressional School of Aeronautics v. State Roads Commission, 218 Md. 236, 146 A.2d 558. Zoning cannot be used as a substitute for eminent domain proceedings to defeat the payment of just compensation by depressing values and so reducing the amount of damages to be paid when private property is to be taken for public use. Krieger v. Planning Commission of Howard County, supra; Congressional School of Aeronautics v. State Roads Commission, supra. But plaintiff has not shown that the Montgomery County zoning ordinance had that purpose or effect as applied to the property in question. As noted above, if the set-backs required by the Master Plan should be held invalid, the set-backs required by the general provisions of the zoning ordinance, quoted above, would be greater along both Fenton Street and Ellsworth Drive than the set-backs called for in the Master Plan. Plaintiffs have not questioned the validity of the general setback provisions of the zoning ordinance, and it does not appear that there are any" } ]

[ { "docid": "21891640", "title": "", "text": "of land acquisitions by the Federal Government, particularly for water resource and recreational purposes”, and had called upon certain officials, including the Secretary of the Interior, “to investigate procedures for protecting the Government against artificial price spirals”. The report gave as one of the primary causes of land price escalation “Keen competition between individuals, developers, and public agencies for prime recreation lands, particularly those which are water-oriented”. . The applicable law permitted the creation of Sewer Districts and the issuance of bonds, secured by assessments on the property owners served. Anno.Code of Md., Art. 43, § 645 et seq. (1965 Repl. Vol. & 1970 Supp.). Any common facility on Assateague could be developed only by the concurrence of a significant number of lot owners. Governmental action, such as the creation of a Sewer District, would have required concerted effort by the lot owners. North Ocean City has many multi-family residential units. Since most of the lots on Assateague were restricted to single-family units, the cost of a sewage disposal system would probably have been higher per family on Assateague than in north Ocean City. . See also 4 Nichols, Eminent Domain, (3d ed.), § 12.314; 1 Orgel, Valuation under Eminent Domain (2d ed.), § 30, at 141; United States v. Benning, 330 F.2d 527 (9 Cir. 1964). . See Olson v. United States, supra; United States v. Certain Land in Baltimore County, 209 F.Supp. 50 (D.Md. 1962); United States v. 1,108 Acres of Land, 204 F.Supp. 737 (E.D.N.Y.1962). . They cite United States v. Meadow Brook Club, 259 F.2d 41 (2 Cir. 1958), cert. denied, 358 U.S. 921, 79 S.Ct. 290, 3 L.Ed.2d 239; Drakes Bay Land Company v. United States, 424 F.2d 574 (Ct. Claims 1970); Board of Com’rs of State Institutions v. Tallahassee B. & T. Co., 108 So.2d 74 (Fla.App.1959); Jarrott v. Scrivener, 225 F.Supp. 827 (D.D.C.1964). . See the majority and dissenting opinions in State Dept. of Health v. Walker, 238 Md. 512, 209 A.2d 555 (1965), and Finding No. 36 herein. . See also the cases cited in fn. 24, above, and In re Inwood" }, { "docid": "8674062", "title": "", "text": "denied the landowners’ motion requesting the valuation date be set as of the date of trial. After some testimony had been offered, the parties agreed on the value at time of taking but preserved the right of the landown ers to appeal the valuation date. The landowners were allowed to offer testimony that the land nearly doubled in value between the date of taking and the date of trial. The Declaration of Taking Act provides that condemned land is to be valued at the date of taking. 40 U.S.C.A. § 258a. It has long been the settled interpretation of the Fifth Amendment that the value at the time of taking is the measure of the compensation to which the landowner is entitled when the property is taken for public use. See United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943); United States v. Klamath and Moadoc Tribes, 304 U.S. 119, 58 S.Ct. 799, 82 L.Ed. 1219 (1938); 2,953.15 Acres of Land v. United States, 350 F.2d 356, 360 (5th Cir. 1964); 6A Nichols on Eminent Domain § 27.25 (1974); 26 Am.Jur.2d Eminent Domain § 131 (1966); 29A C.J.S. Eminent Domain § 185 (1965). Defendants argue, however, that the exceptional circumstances of their situation should modify the established rule. The exceptional circumstances which defendants cite are the dynamic increase in Collin County property value over the period of time from 1968 to the present and the large number of land transactions in the county due to the Dallas metropolitan growth. The appellants rely on the language in a series of cases which suggests no ironclad rule can be followed in determining value and that exceptional circumstances will modify the most carefully guarded rule. United States v. Reynolds, 397 U.S. 14, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970); United States v. Virginia Electric & Power Corp., 365 U.S. 624, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961); United States v. Commodities Trading Corp., 339 U.S. 121, 70 S.Ct. 547, 94 L.Ed. 707 (1950); Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206 (1878);" }, { "docid": "8674063", "title": "", "text": "1964); 6A Nichols on Eminent Domain § 27.25 (1974); 26 Am.Jur.2d Eminent Domain § 131 (1966); 29A C.J.S. Eminent Domain § 185 (1965). Defendants argue, however, that the exceptional circumstances of their situation should modify the established rule. The exceptional circumstances which defendants cite are the dynamic increase in Collin County property value over the period of time from 1968 to the present and the large number of land transactions in the county due to the Dallas metropolitan growth. The appellants rely on the language in a series of cases which suggests no ironclad rule can be followed in determining value and that exceptional circumstances will modify the most carefully guarded rule. United States v. Reynolds, 397 U.S. 14, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970); United States v. Virginia Electric & Power Corp., 365 U.S. 624, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961); United States v. Commodities Trading Corp., 339 U.S. 121, 70 S.Ct. 547, 94 L.Ed. 707 (1950); Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206 (1878); Porter v. United States, 473 F.2d 1329 (5th Cir. 1973); United States v. Lee, 360 F.2d 449 (5th Cir. 1966); Bishop v. United States, 288 F.2d 525 (5th Cir. 1961). Without exception these cases are concerned with the method of determining the value of the property involved and the factors to be considered in arriving at fair market value, not the date of valuation. We have noted two citations which appellants mention as the only two cases which “have been found where Courts have ever varied from value at the time of taking because of abnormal conditions.” United States v. In-lots, Fed.Cas. No. 15441a, 26 Fed.Cas. p. 490 (C.C.Ohio 1873), aff’d without reference to this point in Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449 (1875), and Hocking Valley R. Co. v. Ornstein, 2 Ohio 351 (1935). The cases are inconsequential as authority in the face of the consistent approval given the well established rule by federal courts. The landowners received the bulk of their compensation in 1971. They never requested the district" }, { "docid": "6173494", "title": "", "text": "for opportunities which the owner may lose.” Id. at 282, 63 S.Ct. at 1056. Seeking a grant or exchange of city property in order to close alleys and thereby unify land for a more profitable use is the seeking of a privilege from the government. When a government withholds that privilege as a reasonable exercise of discretion it does not thereby subject itself to increase in condemnation awards. Affirmed. . United States v. Miller, 317 U.S. 369, 373-374, 63 S.Ct. 276, 87 L.Ed. 336 (1943); H & R Corp. v. District of Columbia, 122 U.S.App.D.C. 43, 44, 351 F.2d 740, 741 (1965). . H & R Corp. v. District of Columbia, supra note 1, 122 U.S.App.D.C. at 45, 351 F.2d at 742. . United States ex rel. & for Use of TVA v. Powelson, 319 U.S. 266, 275-276, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943); Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236 (1934). . H & R Corp. v. District of Columbia, supra note 1, 122 U.S.App.D.C. at 45, 351 F.2d at 742. . 7 D.C.Code §§ 303, 305, 401 (1967), now handled by the District of Columbia Council, see 7 D.C.Code §§ 303, 305, 401 (Supp. II 1969). . Budney v. Ives, 156 Conn. 83, 239 A.2d 482 (1968) ; Evans v. Mississippi State Highway Comm., 197 So.2d 805 (Miss. 1967) ; United States v. Meadow Brook Club, 259 F.2d 41 (2d Cir.), cert. denied, 358 U.S. 921, 79 S.Ct. 290, 3 L.Ed.2d 239 (1958); In re Inwood Hill Park, in Borough of Manhattan, 230 App.Div. 41, 243 N.Y.S. 63 (1930). . United States ex rel. & for Use of TVA v. Powelson, 319 U.S. 266, 280, 63 S.Ct. 1047, 1055 (1943). . See Orgel, On Valuation Under Eminent Domain, §§ 98-106 (2d ed.1953). As to compensation for increases in various situations, see United States v. Miller, 317 U.S. 369, 63 S.Ct. 276 (1943) ; Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170 (1893) ; Kerr v. South Park Com’rs, 117 U.S. 379, 6 S. Ct. 801," }, { "docid": "21891641", "title": "", "text": "per family on Assateague than in north Ocean City. . See also 4 Nichols, Eminent Domain, (3d ed.), § 12.314; 1 Orgel, Valuation under Eminent Domain (2d ed.), § 30, at 141; United States v. Benning, 330 F.2d 527 (9 Cir. 1964). . See Olson v. United States, supra; United States v. Certain Land in Baltimore County, 209 F.Supp. 50 (D.Md. 1962); United States v. 1,108 Acres of Land, 204 F.Supp. 737 (E.D.N.Y.1962). . They cite United States v. Meadow Brook Club, 259 F.2d 41 (2 Cir. 1958), cert. denied, 358 U.S. 921, 79 S.Ct. 290, 3 L.Ed.2d 239; Drakes Bay Land Company v. United States, 424 F.2d 574 (Ct. Claims 1970); Board of Com’rs of State Institutions v. Tallahassee B. & T. Co., 108 So.2d 74 (Fla.App.1959); Jarrott v. Scrivener, 225 F.Supp. 827 (D.D.C.1964). . See the majority and dissenting opinions in State Dept. of Health v. Walker, 238 Md. 512, 209 A.2d 555 (1965), and Finding No. 36 herein. . See also the cases cited in fn. 24, above, and In re Inwood Hill Park, 230 App.Div. 41, 243 N.Y.S. 63 (1930), aff’d 256 N.Y. 556, 177 N.E. 138 (1931); Carl M. Freeman Associates, Inc. v. State Roads Commission, 252 Md. 319, 220 A.2d 250 (1969); City of Baltimore v. United Five & Ten Cent Stores, Inc., 250 Md. 361, 243 A.2d 521 (1968); Congressional School of Aeronautics, Inc. v. State Roads Commission, 218 Md. 236, 146 A.2d 558 (1958); Symonds v. Bucklin, 197 F.Supp. 682 (D.Md.1981). . The lot owners rely on such eases as United States v. 25.406 Acres of Land, etc., 172 F.2d 990 (4 Cir. 1949), cert. den. 337 U.S. 931, 69 S.Ct. 1496, 93 L.Ed. 1738 (1949); United States v. Lowrie, 246 F.2d 472 (4 Cir. 1957); United States v. 124.84 Acres of Land, Warrick County, Ind., 387 F.2d 912 (7 Cir. 1968); United States v. 60.14 Acres of Land, 362 F.2d 660 (3 Cir. 1966); Hays v. State of Texas, 342 S.W.2d 167 (Tex.Civ.App. 1960); Knollman v. United States, 214 F.2d 106 (6 Cir. 1954); United States v. Benning, 330 F.2d 527" }, { "docid": "22244469", "title": "", "text": "just compensation determination. Construing governmental regulations is of course a paradigmatic judicial function. With respect to this issue, there is no room for a division of fact-finding responsibilities between judge and jury. There are no “if s,” “and’s,” “but's,” or “maybe's” for the jury to consider. A legal restriction either applies to the proposed use or it does not— and that is a quintessential question of law for the judge to decide. However, it is not at all uncommon within regulatory systems for permits or variances to be granted, or for the regulations themselves (especially zoning regulations) to be changed. And since the prospect of obtaining a permit or a change of zoning classification is a factor that might well be considered by a prospective purchaser, and thus a factor affecting the price a willing buyer would pay for the property, it will often represent an element of fair market value. Accordingly, it is well settled law that if the landowner can demonstrate a “reasonable possibility” that a permit would be issued or that rezoning will occur, thereby freeing the property for a use which otherwise would be precluded by regulatory restrictions, the owner is entitled to have that “reasonable possibility” considered by the jury, provided of course that the use is otherwise a practicable and reasonably probable one. See, e. g., H & R Corp. v. District of Columbia, D.C. Cir., 1965, 122 U.S.App.D.C. 43, 45, 351 F.2d 740, 742; Wolff v. Commonwealth, 1 Cir., 1965, 341 F.2d 945, 946-47; United States v. Meadow Brook Club, 2 Cir., 1958, 259 F.2d 41, 45, cert. denied, 1958, 358 U.S. 921, 79 S.Ct. 290, 3 L.Ed.2d 239. See generally 4 Nichols, The Law of Eminent Domain § 12.322[1] (rev’d 3d ed.). We emphasize, however, that it is for the judge to determine whether this “reasonable possibility” exists. If and only if he finds that it does exist, then the jury must consider and decide what effect this reasonable possibility of a permit or zoning change has upon the fair market value of the condemned property- In sum, we hold that it" }, { "docid": "5478411", "title": "", "text": "slope not permitted) and with respect to some reduction of allowable units on the property because of elimination of some of the acreage by reason of its acquisition by a public authority for other purposes. This case is really a quarrel over to what extent a “cluster” development of residential units is permitted on a parcel of land. The zoning ordinances or regulations on their face do not amount to a taking of the Bank property, which was acquired with notice of the application of these ordinances and regulations made by defendants. Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). I agree with the trial judge’s conclusion that there has not been any taking requiring judgment under the Fifth Amendment. Even if the appellants’ ability to sell their property was limited during the pendency of the condemnation proceeding, the appellants were free to sell or develop their property when the proceedings ended. Mere fluctuations in value during the process of governmental decision-making, absent extraordinary delay, are “incidents of ownership. They cannot be considered as a ‘taking’ in the constitutional sense.” Danforth v. United States, 308 U.S. 271, 285 [60 S.Ct. 231, 236, 84 L.Ed. 240] (1939). See Thomas W. Garland, Inc. v. City of St. Louis, 596 F.2d 784, 787 (CA 8), cert. denied, 444 U.S. 899 [100 S.Ct. 208, 62 L.Ed.2d 135] (1979); Reservation Eleven Associates v. District of Columbia, 136 U.S. App.D.C. 311, 315-316, 420 F.2d 153, 157-158 (1969); Virgin Islands v. 50.05 Acres of Land, 185 F.Supp. 495, 498 (V.I.1960); 2 J. Sackman & P. Rohan, Nichols’ Law of Eminent Domain § 6.13[3] (3d ed. 1979). Agins, n. 9 at 263, n. 9 100 S.Ct. at 2143. The judgment of the California Supreme Court in Agins that the sole remedies available in an inverse condemnation claim, arising out of zoning activity similar to that made by the Bank here, were mandamus and declaratory judgment, was not disturbed by the United States Supreme Court. There has been no physical invasion by defendants of plaintiff’s property, either temporary or permanent. A “taking”" }, { "docid": "21044818", "title": "", "text": "the ‘before-and-after’ method, ie., ‘the difference between the value of the property before and after the Government’s easement was imposed.’ ” Otay Mesa Prop., L.P. v. United States, 670 F.3d 1358, 1364 (Fed.Cir.2012) (quoting United States v. Virginia Elec. & Power Co., 365 U.S. 624, 632, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961)); see also 2,997.06 Acres of Land, 471 F.2d at 334 n. 16; Transwestern Pipeline Co. v. O’Brien, 418 F.2d 15, 21 (5th Cir.1969); United States v. 33.92356 Acres Of Land, 585 F.3d 1, 9 (1st Cir.2009); 8.41 Acres of Land, 680 F.2d at 392. “Under the before and after theory, the tract is considered as a whole; that is, compensation is -fixed by determining the difference between the value of the owner’s entire tract, including the parcel taken, before the taking by the condemning authority, and the value of his remaining property.” 2,997.06 Acres of Land, 471 F.2d at 334 n. 16; see also Transwestern Pipeline, 418 F.2d at 21; Slattery Co. v. United States, 231 F.2d 37, 45-47 (5th Cir.1956); United States v. Certain Parcels of Land in Rapides Parish, La., 149 F.2d 81, 82 (5th Cir.1945). However, it may be-more-practical-in a partial takings case to examine the lost value of the land actually taken and then determine whether the landowner is entitled to an additional amount of “severance damages” for any amount'by which the taking has diminished the value of the remainder. See 4A Nichols on Eminent Domain, § 14.31; United States v. Merz, 376 U.S. 192, 198, 84 S.Ct. 639, 11 L.Ed.2d 629 (1964); O’Brien v. United States, 392 F.2d 949, 953-54 (5th Cir.1968); United States v. 97.19 Acres of Land, More or Less, 582 F.2d 878, 881 (4th Cir.1978); see also 42 U.S.C. § 4651(3) (providing that a federal agency seeking to condemn land shall estimate the amount due as just- compensation and make an offer of such amount to the owner, accompanied' by a written statement summarizing the agency’s basis for the amount offered- and noting - that “[w]here appropriate the just compensation for the real property acquired and for damages to" }, { "docid": "21919417", "title": "", "text": "Brick Co. v. United States, 110 F.2d 360, 361 (5th Cir. 1940). When the property interest taken from a parent tract is merely an easement, the proper measure of damages is still the before-and-after method of valuation, expressed as the difference between the market value of the land free of the easement and the market value as burdened with the easement. Virginia Electric, 365 U.S. at 630, 81 S.Ct. at 789; Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236 (1934); 158.4 Acres of Land, in Bee County, Texas, 515 F.2d at 232; United States v. Brumfield, 354 F.2d 882 (5th Cir. 1966); Slattery Company v. United States, 231 F.2d 37 (5th Cir. 1956). See also United States v. 1,129.75 Acres of Land, etc., 473 F.2d 996, 998 (8th Cir. 1973). This Court in Transwestern Pipeline Co. v. O’Brien, 418 F.2d 15, 21 (5th Cir. 1969), explicitly upheld the appropriateness of this method for valuing pipeline easements. The district court, however, has held that each condemned strip of land is the appropriate “parent tract” for purposes of valuation, because it was “severed” from the remaining acreage within the property lines of each KWW and Firestone tract. When applicable, the issue of unity or separateness of tracts is a question of fact to be presented to the trier of fact. United States v. Reynolds, 397 U.S. 14, 18-19, 90 S.Ct. 803, 806-807, 25 L.Ed.2d 12 (1970); United States v. 3276.21 Acres of Land, 194 F.Supp. 297 (S.D.Cal.1961). Three factors are particularly helpful in ascertaining whether property taken is part of a single, larger tract: physical contiguity, unity of ownership, and unity of use. Nichols, 4A Eminent Domain (1981 Supp.) at 14-393, 14 — 416, 14-424; Babinec v. State, 512 P.2d 563 (Sup.CtAlaska 1973). When an owner actually uses parts of what would otherwise constitute a unified tract for different or separate purposes, however, the parts may be held to be functionally “separate” tracts, though they are not physically separate. See Sharp v. United States, 191 U.S. 341, 24 5. Ct. 114, 48 L.Ed. 211 (1903); United States" }, { "docid": "855231", "title": "", "text": "City with conduct which tends to state an abuse in the exercise of the power of eminent domain presents a federal jurisdictional question under the fourteenth amendment as interpreted in Foster v. Herley, supra. 282 F.Supp. at 183. An examination of our opinion in Foster v. Herley, 330 F.2d 87 (6th Cir. 1964), and the district court’s opinion on remand, Foster v. City of Detroit, 254 F.Supp. 655 (E.D.Mich.1966), aff’d 405 F.2d 138 (6th Cir. 1968), is crucial to an understanding of the holding of the district court. Foster owned three tracts of land in the City of Detroit. In 1950 the City notified him that it intended to condemn his property and that in the meantime he should do nothing either to maintain or improve the property. A few months later the City instituted formal condemnation proceedings and placed a Us pendens against all property in the area. Additionally, the Detroit Common Council passed a resolution freezing the use and management of the property and prohibiting any new buildings or improvements without special permission of council. Despite these initial steps, the condemnation process was never completed; in June of 1960 the City dismissed the proceedings and removed the Us pendens. But during this ten year period Foster’s property deteriorated because of the apparently imminent condemnation: it became extremely difficult to find tenants for his rental property; vandals looted the empty buildings and fire insurance was can-celled. The entire neighborhood suffered similar problems. Then in 1958 the City informed Foster that because of the delapidated condition of the buildings, they would have to be demolished at his expense. This was done, and Foster was left in debt with three empty parcels of land. Finally, in 1961 Foster learned that the City was again considering condemnation — this time under the Federal Urban Renewal Program. The new appraisals on the property were at its depreciated, 1961, value. Foster filed suit in the United States District Court, alleging that the City had abused its power of eminent domain and had so deprived the plaintiff of his use and enjoyment of the property" }, { "docid": "16687005", "title": "", "text": "bounds the bed of the river. Lands above it are fast lands and to flood them is a taking for which compensation must be paid.” United States v. Willow River Power Co., 324 U.S. 499, 509, 65 5.Ct. 761, 767, 89 L.Ed. 1101 (1945); see Kaiser Aetna v. United States, 444 U.S. 164, 177, 100 S.Ct. 383, 391, 62 L.Ed.2d 332 (1979) (and cases cited) (“none of these cases ever doubted that when the Government wished to acquire fast lands, it was required by the Eminent Domain Clause of the Fifth Amendment to condemn and pay fair value for that interest”). However, it is also well established that the fair value which is to be paid by the government for the taking of fast land does not include any value derived from access to or use of the stream or its flow. See Kaiser Aetna, 444 U.S. at 177, 100 S.Ct. at 391 (“when the Government acquires fast lands to improve navigation, it is not required under the Eminent Domain Clause to compensate landowners for certain elements of damage attributable to riparian location”). The underlying rationale for denying compensation for such claims is reflected in the Court’s statement in United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 69, 33 S.Ct. 667, 674, 57 L.Ed. 1063 (1913), that “[o]wnership of a private stream wholly upon the lands of an individual is conceivable; but that the running water in a great navigable stream is capable of private ownership is inconceivable.” “The Government ... cannot be required to pay any hypothetical additional value to a riparian owner who had no right to appropriate the current to his own commercial use.” Id. at 76, 33 S.Ct. at 677; see also United States v. Virginia Elec. & Power Co., 365 U.S. 624, 629, 81 S.Ct. 784, 788, 5 L.Ed.2d 838 (1961). In the present case, there is no allegation of any loss of property or value associated with “the flow of the stream.” Nor was the “property” allegedly taken by the government from Ms. Payne an artificial structure built in or under the" }, { "docid": "22545676", "title": "", "text": "beauty, for recreation and for the use of natural resources.” Cal. Govt. Code Ann. § 65561 (a) (West. Supp. 1979); see Tiburon, Cal., Ordinance No. 124 N. S. §§ 1 (f) and (h). The City Council of Tiburón found that “[i]t is in the public interest to avoid unnecessary conversion of open space land to strictly urban uses, thereby protecting against the resultant adverse impacts, such as air, noise and water pollution, traffic congestion, destruction of scenic beauty, disturbance of the ecology and environment, hazards to geology, fire and flood, and other demonstrated consequences of urban sprawl.” Id., § 1 (c). Appellants also claim that the city’s precondemnation activities constitute a taking. See nn. 1, 3, and 5, supra. The State Supreme Court correctly rejected the contention that the municipality’s good-faith planning activities, which did not result in successful prosecution of an eminent domain claim, so burdened the appellants’ enjoyment of their property as to constitute a taking. See also City of Walnut Creek v. Leadership Housing Systems, Inc., 73 Cal. App. 3d 611, 620-624, 140 Cal. Rptr. 690, 695-697 (1977). Even if the appellants’ ability to sell their property was limited during the pendency of the condemnation proceeding, the appellants were free to sell or develop their property when the proceedings ended. Mere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are “incidents of ownership. They cannot be considered as a ‘taking’ in the constitutional sense.” Danforth v. United States, 308 U. S. 271, 285 (1939). See Thomas W. Garland, Inc. v. City of St. Louis, 596 F. 2d 784, 787 (CA8), cert. denied, 444 U. S. 899 (1979); Reservation Eleven Associates v. District of Columbia, 136 U. S. App. D. C. 311, 315-316, 420 F. 2d 153, 157-158 (1969); Virgin Islands v. 50.05 Acres of Land, 185 F. Supp. 495, 498 (V. I. 1960) ; 2 J. Saekman & P. Rohan, Nichols’ Law of Eminent Domain § 6.13 [3] (3d ed. 1979)." }, { "docid": "1902144", "title": "", "text": "an unqualified taking in fee by eminent domain takes all interests and as it takes the-res is not called upon to specify the interests that happen to exist.” Duckett & Co. v. United States, 266 U.S. 149, 45 S.Ct. 38, 69 L.Ed. 216. The value of the property once being determined in a proper proceeding, the sum so determined stands in the place of the property and can be distributed upon the adjudication of the value of the respective interests. United States v. Dunnington, 146 U.S. 338, 13 S.Ct. 79, 36 L.Ed. 996; Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463. See, also: Edmands v. Boston, 108 Mass. 535; City of St. Louis v. Rossi, 333 Mo. 1092, 64 S.W.2d 600; State v. Superior Court, 80 Wash. 417, 141 P. 906; Matter of New York, W. S. & B. Ry. Co., 35 Hun, N. Y., 633; Burt v. Merchants’ Insurance Co., 115 Mass. 1; 2 Lewis, Eminent Domain, 3d Ed. 1909, p. 1253. Here the Government was seeking to acquire a certain tract of land. One of the appellants, Sara Meadows, owned fee simple title to the tract, the other appellant C. J. Taylor owned the timber on said tract and the Government was not interested in respective value of the land and the timber separately and it was proper in the proceeding below to have the value of the tract including the timber fixed by the jury. As to how the value thus fixed should be apportioned between the owner of the fee simple title and the owner of the timber is governed by Sec. 40-23 of the General Statutes of North Carolina, above quoted. It is not necessary to cite numerous cases which without exception lay down this principle. The record is somewhat uncertain as to what the judge originally intended by his ruling that the Government’s motion that the value of tract 540 and 540a be tried as one action, be denied. From subsequent developments in the trial, it seems clear that the court construed the request by the Government" }, { "docid": "21113029", "title": "", "text": "admitted simply by attachment to an appraiser’s report. In any event, the specific items challenged by the landowners are not of the kind that might be admitted in connection with the expert’s tes timony, regardless of the presence of a limiting instruction. Inasmuch as there will be a retrial, we need to address issues raised on appeal that may reappear in the subsequent trial. The district court correctly ruled on the remaining three issues raised on this appeal. First, the district court denied the landowners’ motion in limine for an order excluding from evidence any reference to the preexisting Tucson Electric & Power (TEP) 45-kv transmission line within a right of way abutting landowners’ property. The landowners argued that the Government selected the existing alignment of the TEP lines, condemned additional adjacent lands, contracted with TEP to construct the project by building the 115-kv poles and circuits, and relocated TEP’s old 46-kv line to the new facility. This, the landowners contend, made TEP the Government’s agent for eminent domain purposes. The district court disagreed and held that evidence of the condition of condemned land is relevant and the court could not artificially increase or decrease the value of the condemnees’ land by ignoring a condition that the Government did not create. United States v. Virginia Elec. & Power Co., 365 U.S. 624, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961), holds that the value of the easement must be neither enhanced nor diminished by the special need that the Government had for it. While the Government is barred from first driving down the value of property it intends to acquire, see 42 U.S.C. § 4651(3) (codifying Virginia Electric), the landowners cite no authority that a preexisting condition not created by the federal government must be excluded from the compensation calculus. Second, in charging the jury, the district court committed no error in refusing to give the following five instructions requested by the landowners: (1) that the fair market value of the property may be based on an assumption and need not be shown by identifying a specific buyer; (2) that the" }, { "docid": "20382285", "title": "", "text": "“before and after” method was appropriate (if the jury determined that there was unity of use) and to refuse to exclude the testimony of the government’s expert, Raul Lugo, utilizing the before and after method. The before and after method is used in cases of a partial taking; the entire parcel is valued before and after the taking of the condemned portion. Where the condemnation is a partial taking, the before and after method is generally viewed as the conventional method for determining just compensation. For example, in a partial takings case involving an easement, United States v. Virginia Electric & Power Co., 365 U.S. 624, 632, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961), the Supreme Court stated that the trial court “adopted an acceptable method of appraisal, indeed the conventional method, in valuing what was acquired by the Government by taking the difference between the value of the property before and after the Government’s easement was imposed.” In United States v. Grizzard, 219 U.S. 180, 182, 31 S.Ct. 162, 55 L.Ed. 165 (1911), the Supreme Court affirmed a compensation determination of $1,500 based on finding that “the whole land was worth $3,000 before said taking, and what was left after the taking was worth $1,500.” See also United States v. 8.41 Acres of Land, 680 F.2d 388, 392 (5th Cir.1982)(“Federal courts have long held that an appropriate measure of damages in a partial-taking case is the difference between the value of the parent tract before the taking and its value after the taking.”); United States v. 9.20 Acres of Land, 638 F.2d 1123, 1126-27 (8th Cir.1981)(“In partial taking cases, the proper measure of compensation is the difference between the fair and reasonable market value of the entire ownership immediately before the taking and the fair and reasonable market value of what is left immediately after the taking.”); 4A Nichols, The Law of Eminent Domain § 14.02, 14.31 (rev. 3d ed. 1981)(“Virtually all jurisdictions allow the use of the before and after methodology, and many of them mandate its use or even its sole use.”). The before and after method" }, { "docid": "21891628", "title": "", "text": "of the health of the people who might build on the Island, unconnected with the possible acquisition by the Government; and that the cases relied on by the lot owners are not in point. The Court concludes that in the context of the present case the consequences of those actions should not be ignored or dismissed as “incidents of ownership”. It would be unfair to permit the condemning agency to depress property values, directly or indirectly, by interfering with the property owners’ rights to use their land, and then take advantage of such depression to reduce the price which it must pay for the property. In United States v. Virginia Electric & Power Company, 365 U.S. 624, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961), the Court said: “ * * * The court must exclude any depreciation in value caused by the prospective taking once the Government ‘was committed’ to the project. * * * Accordingly, the impact of that event upon the likelihood of actual exercise of the easement cannot be considered. As one writer has pointed out, ‘[i]t would be manifestly unjust to permit a public authority to depreciate property values by a threat * * * [of the construction of a government project] and then to take advantage of this depression in the price which it must pay for the property’ when eventually condemned. 1 Orgel, Valuation under Eminent Domain, § 105, at 447 (2d ed.); see Congressional School of Aeronautics Inc. v. State Roads Commission, 218 Md. 236, 249-250, 146 A.2d 558, 565.” 365 U.S. at 636, 81 S.Ct. at 792. The governmental actions set out in Findings 27 to 35 should be considered by the Court in determining the weight which should be given to the 1963-1965 sales of lots on Assateague; but they do not require that those sales should be disregarded. The lot owners contend that the adjustments which must be made to the Assateague sales for a variety of reasons makes it necessary to resort to comparable sales elsewhere. The Court agrees that consideration should be given to sales in north Ocean" }, { "docid": "9767364", "title": "", "text": "the present case, as we have said, there is no support in the evidence for any comparable finding that the general royalty was depressed below fair market value. Where, as here, the commercial rate does represent fair market value, the eminent domain principle infused into § 1498, together with the normal pattern followed in federal eminent domain, seem to us to preclude any addition to that value for litigation difficulties. We have already recalled (Part I, supra) that the section under which plaintiffs sue is a congressional exercise of the federal eminent domain power (see Irving Air Chute Co. v. United States, 93 F.Supp. 633, 117 Ct.Cl. 799, 802-803 (1950)); the statutory grant of “reasonable and entire compensation” has been taken as the equivalent of the Fifth Amendment’s “just compensation.” See, e. g., Waite v. United States, 282 U.S. 508, 509, 51 S.Ct. 227, 75 L.Ed. 494 (1931), citing non-patent eminent domain cases to warrant the award of interest under § 1498. “Just compensation”, in the eminent domain sense, has been said by the Supreme Court not to embrace attorneys’ fees and expenses. Dohany v. Rogers, 281 U.S. 362, 368, 50 S.Ct. 299, 74 L.Ed. 904 (1930). And fair market value, when it exists, is normally the maximum that must be awarded. United States v. Commodities Trading Corp., 339 U.S. 121, 123, 70 S.Ct. 547, 94 L.Ed. 707 (1950); United States v. Virginia Electric & Power Co., 365 U.S. 624, 633, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961). Until very recently, Congress (which can, of course, give more than constitutional “just compensation”) did not contemplate or provide for litigation expenses as part of eminent domain awards. Pub.L. No. 91-646, 84 Stat. 1894, § 304, enacted January 2, 1971, authorizes the reimbursement of “reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal and engineer ing fees, actually incurred” in proceedings under 28 U.S.C. §§ 1346(a) (2) and 1491 (non-patent eminent domain suits by claimants). But the statute was not extended to patent suits under § 1498, and it contains a subsection which seems to negative any purpose to alter or increase" }, { "docid": "22244521", "title": "", "text": "the fair market value of that property, so that neither the landowner nor the Government profits from th.e effect the Government’s condemnation activities have upon the market, had been emphasized by the Court previously in United States v. Virginia Elec. & Power Co., 1961, 365 U.S. 624, 81 S.Ct. 784, 5 L.Ed.2d 838. In that case, the United States had appropriated a perpetual and exclusive flowage easement. The Court held that the value of the easement was the “nonriparian value of the servient land discounted by the improbability of the easement’s exercise,” and that in determining this value, “no weight should be given to the prospect of governmental appropriation.” 365 U.S. at 635-36, 81 S.Ct. at 792. As the Court explained further, The value of the easement must be neither enhanced nor diminished by the special need which the Government had for it. * * * The court must exclude any depreciation in value caused by the prospective taking once the Government “was committed” to the project. United States v. Miller, supra, at 376-77 [, 63 S.Ct. 276 at 281, 87 L.Ed. 336]; see United States v. Cors, supra, [337 U.S.] at 332 [, 69 S.Ct at 1090]. Accordingly, the impact of that event upon the likelihood of actual exercise of the easement cannot be considered. As one writer has pointed out, “[i]t would be manifestly unjust to permit a public authority to depreciate property values by a threat [of the construction of a government project] and then to take advantage of this depression in the price which it must pay for the property” when eventually condemned. 1 Orgel, Valuation under Eminent Domain, § 105, at 447 (2d ed.); see Congressional School of Aeronautics v. State Roads Comm'n, 218 Md. 236, 249-250, 146 A.2d 558, 565. Id. at 636, 81 S.Ct. at 792. See also United States v. 8,968.06 Acres of Land, S.D.Tex., 1971, 326 F.Supp. 546, 548-50; see generally 4 Nichols, The Law of Eminent Domain § 12.3151 (rev’d 3d ed.). Not all depreciations in value arguably attributable to nearby governmental projects are disregarded in determining just compensation awards," }, { "docid": "22244470", "title": "", "text": "will occur, thereby freeing the property for a use which otherwise would be precluded by regulatory restrictions, the owner is entitled to have that “reasonable possibility” considered by the jury, provided of course that the use is otherwise a practicable and reasonably probable one. See, e. g., H & R Corp. v. District of Columbia, D.C. Cir., 1965, 122 U.S.App.D.C. 43, 45, 351 F.2d 740, 742; Wolff v. Commonwealth, 1 Cir., 1965, 341 F.2d 945, 946-47; United States v. Meadow Brook Club, 2 Cir., 1958, 259 F.2d 41, 45, cert. denied, 1958, 358 U.S. 921, 79 S.Ct. 290, 3 L.Ed.2d 239. See generally 4 Nichols, The Law of Eminent Domain § 12.322[1] (rev’d 3d ed.). We emphasize, however, that it is for the judge to determine whether this “reasonable possibility” exists. If and only if he finds that it does exist, then the jury must consider and decide what effect this reasonable possibility of a permit or zoning change has upon the fair market value of the condemned property- In sum, we hold that it is the trial court’s responsibility under Rule 71A(h) to screen all proffered potential use evidence and exclude from consideration by the trier of fact evidence of any potential uses upon which a just compensation award may not, as a matter of law, be based. This of course encompasses alleged potential uses which have not been demonstrated to be practicable and reasonably probable even absent regulatory restrictions as well as potential uses that are proscribed by legal restrictions from which there is no reasonable possibility of relief. If, however, the party offering the potential use evidence (almost invariably, the landowner) is able to meet this threshold burden, then evidence pertaining to that use must be submitted to the trier of fact under whatever instructions are appropriate, and the weight of that evidence as regards the fair market value of the property is for the trier of fact to decide. With respect then to the 52 tracts in this case, the landowners on remand bear the burden of producing credible evidence that as of the time of" }, { "docid": "21267865", "title": "", "text": "the promotion of health or safety. See Opinion of the Justices to the Senate, 333 Mass. 773, 128 N.E.2d 557; Women’s Kansas City St. Andrew Soc. v. Kansas City, Mo., 8 Cir., 1932, 58 F.2d 593, 603; State ex rel. Civello v. City of New Orleans, 1923, 154 La. 271, 97 So. 440, 33 A.L.R. 260. Both Salem and Oregon, appearing herein by brief amicus curiae, rely on Berman v. Parker, 1954, 348 U.S. 26, 75 S.Ct. 98, 104, 99 L.Ed. 27. A perusal of that ease reveals that it can be of no solace to Salem or Oregon. In fact, it should be a teaching that if Oregon desires Robertson’s lands for a future public use, it should exercise its power of eminent domain and give Robertson just compensation, as dictated by the Constitution of the State of Oregon. Berman merely holds that the District of Columbia Redevelopment Act of 1945, D.C.Code 1951, § 5-701 et seq., wherein its administrative agency was given the power of eminent domain in the course of the redevelopment of a large area of the District of Columbia so as to eliminate and prevent slum and substandard conditions, was constitutional and that the administrative agency had the right to acquire private property for such purpose by eminent domain, which includes the present payment of just compensation. The decision of the Supreme Court of the United States closes with these words: “The rights of these (contesting) property owners are satisfied when they receive that just compensation which the Fifth Amendment exacts as the price of the taking.” That is all that Robertson is asking, else let him use his property as does his neighbor across the street. Robertson contends that Salem’s only purpose in establishing District at its delineated boundaries and imposing the land use restrictions thereunder was in response to Oregon’s legislative request to depress the land values and prevent a higher and better economic use of Robertson’s parcels preliminary to some future eminent domain proceedings by Oregon to acquire the property for its governmental uses. The evidence substantiates the point and leads one" } ]

[ { "docid": "23462553", "title": "", "text": "in securing protection against both the burdens of additional litigation and the potentially devastating financial effects of the purchase rights plan. We find no error in the district court’s rejection of Rothenberg’s suggestion that NL colluded with Amalgamated in reaching the settlement agreement. Control of NL remained with the independent board of directors after Amalgamated acquired 51 percent of NL’s stock; up until settlement the directors had vigorously defended the validity of the purchase rights plan, and there is every indication in the record that the settlement represented their informed judgment that the interests of NL and its shareholders would be served best by settlement. Based on the foregoing, the district court had jurisdiction to enter the consent decree. However, that decree is res judicata as to the claim Rothenberg has attempted to assert in the state court only if there is sufficient privity between Roth-enberg and NL and its directors. The doctrine of privity, which extends the res judi-cata effect of a prior judgment to nonparties who are in privity with the parties to the first action, is to be applied with flexibility. United States v. ITT Rayonier, Inc., 627 F.2d 996, 1003 (9th Cir.1980). We agree with the district court that the relationship between the parties in the context of this litigation was sufficiently close to support a finding of privity and thus to preclude Rothenberg’s relitigation of this issue. See Southwest Airlines, 546 F.2d 84, 95 & n. 38 (“privity * * * represents a legal conclusion that the relationship between [the parties] is sufficiently close to [support] preclusion”) (citation omitted). As the district court concluded, there is no bright line rule as to whether or not shareholders are in privity with their corporation for res judicata purposes. Rather, a finding of privity between a shareholder and the corporation depends on whether, under the circumstances, the interests of the nonparty were adequately represented. See Ellentuck v. Klein, 570 F.2d 414, 425-26 (2d Cir.1978); Expert Electric, 554 F.2d at 1233; Southwest Airlines, 546 F.2d at 95; Alleghany Corp. v. Kirby, 344 F.2d 571, 573-74 (2d Cir.1965), cert. dismissed," } ]

[ { "docid": "15847202", "title": "", "text": "Commissioner, 458 F.2d 631, 639 (9th Cir.1972). As this court has stated before, the public policies underlying the doctrine of collateral estoppel, “as a bar to repetitious litigation, would support a finding of privity between a close corporation and its sole or controlling stockholder.” Id. See also Drier v. Tarpon Oil Co., 522 F.2d 199, 200 (5th Cir.1975); United States v. Webber, 396 F.2d 381, 386-88 (3rd Cir.1968); Warnecke v. Laclede Gas Co., 455 F.Supp. 444, 446 (E.D.Mo.1978), aff’d sub nom., Laclede Gas Co. v. G.W. Warnecke Corp., 604 F.2d 561 (8th Cir.1979). Here it is undisputed that Gottheiner owned all the outstanding shares of CCHCS stock and exercised control over its day to day affairs. Thus there is no question that privity exists and we conclude upon a de novo review of this legal issue that the lower court decided the issue correctly. 2. Actually litigated Another prerequisite to the application of collateral estoppel is that the disputed issue must have been actually litigated in the prior proceeding. General Teamsters, Auto Truck Drivers and Helpers Local 162 v. Mitchell Brothers Truck Lines, 682 F.2d 763, 768 (9th Cir.1982); American Triticale, Inc. v. Nytco Services, Inc., 664 F.2d 1136, 1147 (9th Cir.1982). Gottheiner contends that the lower courts erred in giving collateral estoppel effect to the judgment against CCHCS because the judgment was based on an uncontested motion for summary judgment and was therefore not actually litigated. It is true that some types of judgments are not given collateral estoppel ef-feet because the court did not get the benefit of ..deciding the issue in an adversarial context. In the case of a default judgment, for example, a party may decide that the amount at stake does not justify the expense and vexation of putting up a fight. The defaulting party will certainly lose that lawsuit, but the default judgment is not given collateral estoppel effect. Spilman v. Harley, 656 F.2d 224, 228 (6th Cir.1981); Commonwealth of Massachusetts v. Hale, 618 F.2d 143, 146 (1st Cir.1980); Matter of McMillan, 579 F.2d 289, 293 (3d Cir.1978). The circumstances here are quite different." }, { "docid": "11655279", "title": "", "text": "of an arbitration agreement, see Davis v. Chevy Chase Financial Ltd., No. 80-1297 (D.C. Cir. October 15, 1981), the “strong federal policy in favor of voluntary commercial arbitration” requires that we not read the scope of such agreements too narrowly. Hanes Corp v. Millard, 531 F.2d 585, 597 (D.C. Cir. 1976). Schattner’s claims of unfair competition and interference with contract were effectively arbitrated and were correctly dismissed under this standard. See, e.g., Goldstein v. Doft, supra (claims of misrepresentation, inducement of breach of contract, and unjust enrichment cannot be litigated on tort theory when bases therefor already submitted to arbitration as part of claim for commissions due under contract); Ritchie v. Landau, 475 F.2d 151, 156 (2d Cir. 1973) (claim of fraudulent inducement dismissed on ground that plaintiff had fair opportunity to litigate claim in arbitration proceeding for breach of contract); Altshul Stern & Co. v. Mitsui Bussan Kaisha, Ltd., 385 F.2d 158, 159 (2d Cir. 1967) (cause of action for “tort of conspiracy” held to be within arbitration clause because based on claims that arose from breach of contract). The basic facts underlying these tort claims are not distinguishable from the facts at issue in the arbitration. Similarly, Bevilacqua’s misrepresentation and securities claims are precluded by the arbitrators’ rejection of Girard’s misrepresentation claim against Schattner. Bevilacqua is the dominant shareholder of a closely held corporation, and not only controlled and assisted Girard’s litigation during the arbitration, but was also a party to that arbitration. See Drier v. Tarpon Oil Co., 522 F.2d 199, 200 (5th Cir. 1975); Kreager v. General Electric Co., 497 F.2d 468, 472 (2d Cir.), cert. denied, 419 U.S. 861, 95 S.Ct. 111, 42 L.Ed.2d 95 (1974); Von Opel v. Brownell, 244 F.2d 789, 792-93 (D.C. Cir.), cert. denied, 355 U.S. 878, 78 S.Ct. 141, 2 L.Ed.2d 108 (1957). It is also clear that an arbitration decision can have res judicata effect even if the underlying claim involves the federal securities laws. Moran v. Paine, Webber, Jackson & Curtis, 389 F.2d 242, 246 (3rd Cir. 1968); Davis v. Chevy Chase Financial Ltd., supra, slip op. at" }, { "docid": "18869814", "title": "", "text": "damages amounting to $557,925.15. That award was confirmed by Judge Owen of this court (Memorandum Decision, 78 Civ. 2199, August 30, 1978). Relying on the Restatement of Judgments § 83 (1942), Eagle argues that the determinations in those earlier actions are binding on John O’Con-nor and O’Connor & Sons because, though not themselves parties to those proceedings, they were privies of Atlantic. Eagle has established that there was privity between Atlantic and John E. O’Connor. A determination made against a corporation will be binding on a stockholder, officer or director in a subsequent proceeding if the individual controlled the earlier action in the furtherance of his own interests. Kreager v. General Electric Corp., 497 F.2d 468, 472 (2d Cir.), cert. denied, 419 U.S. 861, 95 S.Ct. 111, 42 L.Ed.2d 95 (1974); Ritchie v. Landau, 475 F.2d 151, 155 n.2 (2d Cir. 1973); Drier v. Tarpon Oil Co., 522 F.2d 199, 200 (5th Cir. 1975). John E. O’Connor was the president, sole director and sole shareholder of Atlantic. Because of his position, it is difficult to conclude that O’Connor was not in control of Atlantic’s case in the earlier proceeding. By failing to present contrary evidence, O’Con-nor has impliedly conceded as much. He was, in fact, one of Atlantic’s main witnesses. Furthermore, as the sole shareholder in Atlantic, he clearly was personally interested in the outcome of the litigation and in a position to control it. The Court of Appeals, on similar reasoning, has noted that an individual who was the president of a corporation and held only 42 percent of the corporation’s stock would be bound by an earlier determination made against the corporation. Ritchie v. Landau, supra. Because he was a “privy” of Atlantic, O’Connor is estopped from relitigating the determinations made against Atlantic in the earlier proceedings: that there was a charter party between Eagle and Atlantic; that Atlantic breached it; and that, as a result, Eagle suffered damages amounting to $557,925.15. That O’Connor was the privy of Atlantic does not, however, suffice to establish that he is personally liable for obligations incurred by Atlantic. To establish his" }, { "docid": "71689", "title": "", "text": "“pay no attention to that man behind the curtain.” THE WIZARD OF OZ (Metro-Goldwyn-Mayer 1939). But Rule 65 requires us, like Toto, to pull back the curtain to expose the reality. Once we do, it is plain that Rodberg and RLBS are so related that an injunction binding the former also binds the latter. On this record, Rodberg completely controls RLBS: He is the President and sole shareholder. RLBS operates for Rod-berg’s benefit and he can cease its operation at any time. See Jefferson Sch. of Soc. Sci. v. Subversive Activities Control Bd., 331 F.2d 76, 83 (D.C.Cir.1963) (finding privity between two entities where one was “substantially dominated, directed and controlled” by other and “operate[d] primarily to achieve [its] objectives”); Drier v. Tarpon Oil Co., 522 F.2d 199, 200 (5th Cir.1975) (“president and major stockholder” who made “ultimate decisions” for corporation in privity with it). Moreover, RLBS simply carries on the business of the now-defunct RLS — an entity expressly named in the February injunction. See Regal Knitwear, 324 U.S. at 14, 65 S.Ct. 478 (injunctions also bind “successors and assigns who operate as ‘merely a disguised continuance of the old employer’ ... whether [the business was transferred] as a means of evading the judgment or for other reasons” (citations omitted)); Vacco v. Operation Rescue Nat’l, 80 F.3d 64, 71 (2d Cir.1996) (finding successor organization bound by injunction because its leadership, goals and activities were identical to enjoined predecessor). Given the identity of interest among Rodberg and his limousine companies, the February injunction forbad RLBS — and any similar company that Rodberg creates — from operating a limousine business in the District without a license. See G. & C. Merriam Co. v. Webster Dictionary Co., 639 F.2d 29, 38 (1st Cir.1980) (if “the same person continues] to do essentially the same thing with the same high degree of practical control, discretion and responsibility, before and after the injunction, with knowledge of the injunction, and after participating in the enjoined firm’s corporate decisionmaking regarding its position in the injunction proceedings,” then “corporations founded by him are also subject to it”). Rodberg" }, { "docid": "1167245", "title": "", "text": "this inquiry is made, we cannot say what issues actually were resolved by that judgment and thus whether there is any conflict. Accordingly, we reverse the judgment of the district court with instructions to remand this case to the bankruptcy court for further proceedings. On remand, the bankruptcy court should conduct a hearing as to the parties’ intent in consenting to the dismissal of the Illinois case. The court should consider the record of the Illinois litigation and any extrinsic evidence of fered by the parties. After such an inquiry, the bankruptcy court must determine what issues, if any, were resolved by the Illinois judgment. The court should next determine whether any conflict exists between the Illinois and Florida judgments and resolve any conflicts in favor of the latter judgment. Finally, the court should decide whether to accord collateral estoppel effect to the issues actually settled by the earlier litigation. See Deweese v. Town of Palm Beach, 688 F.2d 731, 733-34 (11th Cir.1982). As a final matter, the appellants ask that we enter a final judgment on the merits in their favor based on the evidence in the existing record. Since there has not yet been a full fact-finding, we decline their request. These factual findings should be made in the first instance by the bankruptcy court. The judgment of the district court is REVERSED and the case is REMANDED for proceedings consistent with this opinion. . The appellants were not actual parties to either the Illinois or the Florida state court cases. Nonetheless, they are in privity with an actual party, Austin’s Rack, and, as such, are bound by the collateral estoppel effect of those two judgments. See Southwest Airlines Co. v. Texas International Airlines, 546 F.2d 84, 95 (5th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 117, 54 L.Ed.2d 93 (1977); Drier v. Tarpon Oil Co., 522 F.2d 199, 200 (5th Cir.1975) (per curiam); Astron Industrial Associates, Inc. v. Chrysler Motors Corp., 405 F.2d 958, 961 (5th Cir.1968). . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as precedent" }, { "docid": "1912476", "title": "", "text": "Pirrotta v. Independent School Dist. No. 347, 396 N.W.2d 20, 22 (Minn.1986); Brunsoman v. Seltz, 414 N.W.2d 547, 550 (Minn.Ct.App.1987), petition for review denied (Minn. Jan. 15, 1988); Miller v. Northwestern Nat’l Ins. Co., 354 N.W.2d 58, 62 (Minn.Ct.App.1984). Other courts concentrate on the identity of rights, finding privity exists where the party in the previous litigation represented the same legal right as the party being estopped. Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975) (privity exists where the party’s interests are so closely aligned as to be his virtual representative); Jefferson School of Social Science v. Subversive Activities Control Bd., 331 F.2d 76, 83 (D.C.Cir.1963) (privity designates a person so identified an interest with a party to former litigation that he represents precisely the same legal right in respect to the subject matter involved); First Nat’l Bank v. Ickes, 154 F.2d 851, 853 n. 9 (D.C.Cir.1946) (privity is a mutual or successive relationship to the same rights of property); 46 Am.Jr.2d Judgments § 532 (1969) and cases cited therein. See also Hentschel v. Smith, 278 Minn. 86, 153 N.W.2d 199, 206 (1967) (privies are those who are so connected with the parties in estate or in blood or in law as to be identified with them in interest and consequently to be affected with them by the litigation); Margo-Kraft Distributors, Inc. v. Minneapolis Gas Co., 294 Minn. 274, 278, 200 N.W.2d 45, 47-48 (1972). But see Pirrotta v. Independent School Dist. No. 347, 396 N.W.2d 20, 22 (Minn.1986) (fact that interests may coincide is not enough). Still other courts define privity less rigidly as “a finding that all of the facts and circumstances justify a conclusion that non-party preclusion is proper.” First Alabama Bank v. Parsons Steel, Inc., 747 F.2d 1367, 1378 (11th Cir.1984), rev’d on other grounds, 474 U.S. 518, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986). See Gill and Duffus Services, Inc. v. A.M. Nural Islam, 675 F.2d 404, 405 (D.C.Cir.1982); Oldham v. Pritchett, 599 F.2d 274, 279 (8th Cir.1979); Towle v. Boeing" }, { "docid": "15597521", "title": "", "text": "of subsequent proceedings to enforce * * * a judgment. [3B Moore’s Federal Practice ¶ 25.03[1], at 25-101 (2d ed. 1977), footnote omitted] Id. at 23. The facts in Minnesota Mining and Manufacturing Company v. Eco Chem, Inc., 757 F.2d 1256 (Fed. Cir.1985), have some similarity to the facts in the instant case. Suit was brought by 3M against Eco Chem, Inc., a corporation owned and controlled by Stephanie and George Rynne. A default judgment was obtained against Eco Chem. After suit had been commenced, the Rynnes formed a Georgia corporation, ECL, and the shareholders of Eco Chem exchanged their stock for ECL shares and all of Eco Chem’s assets were transferred to ECL, making Eco Chem completely judgment proof. The court found that ECL was properly joined as a party “because it succeeded to the assets from which 3M may satisfy its judgment.” Id. at 1264. It has long been the rule that a nonparty who controls the litigation is bound by the judgment. “The reason would be that the non-party would have the power to determine what evidence and arguments should be offered in the litigation and, if appropriate, the appeal.” General Foods Corporation v. Massachusetts Department of Public Health, 648 F.2d 784, 789 (1st Cir.1981). See also Drier v. Tarpon Oil Company, 522 F.2d 199 (5th Cir.1975) (president of corporation held liable because of privity and as a controlling person under 15 U.S.C. § 77o); Kreager v. General Electric Company, 497 F.2d 468, 471 (2d Cir.) (sole shareholder of corporation bound by dismissal of first action brought in the name of his corporation), cert. denied, 419 U.S. 861, 95 S.Ct. 111, 42 L.Ed.2d 95 (1974); Pan American Match, Inc. v. Sears, Roebuck & Co., 454 F.2d 871, 874 (1st Cir.) (subsidiary corporation sufficiently identified with its parent company to represent the legal rights of the parent), cert. denied, 409 U.S. 892, 93 S.Ct. 113, 34 L.Ed.2d 149 (1972); 1B J. Moore, J. Lucas, & T. Currier, Moore’s Federal Practice and Procedure § 0.411[10] at 477-78 (1984 & Supp.1986-87). We agree with the district court that there is" }, { "docid": "22938987", "title": "", "text": "equitable subordination is not inconsistent with the provisions of the Bankruptcy Code. The defendant’s novel argument is plausible at first glance, but upon closer consideration, it is not persuasive, for the four requirements for res judicata were not met: there was no unity of parties, the causes of action asserted are not the same in this suit as in the bankruptcy proceeding, and the bankruptcy court would not have had jurisdiction to hear Howell’s claims against the defendants. Howell argues that there was no identity of the parties between the bankruptcy and this case, for in the bankruptcy proceedings the defendants were present only in their corporate representative capacities, whereas Howell's current claims are against the defendants in their individual capacities. Res judicata does not apply when the parties appear in one action in a representative capacity and in a subsequent action in an individual capacity. Clark v. Amoco Production Co., 794 F.2d 967, 973 (5th Cir.1986). The identity of parties test is met not only as to parties to the earlier litigation, however, but also to those in privity with them. Id.; Lubrizol Corp. v. Exxon Corp., 871 F.2d 1279 (1989); Drier v. Tarpon Oil Co., 522 F.2d 199, 200 (5th Cir.1975). A non-party is in privity with a party for res judicata purposes in three instances: (1) if he is a successor in interest to the party’s interest in the property; (2) if he controlled the prior litigation; or (3) if the party adequately represented his interests in the prior proceeding. Benson & Ford, Inc. v. Wanda Petroleum, 833 F.2d 1172 (5th Cir.1987). See also Southwest Airlines Co. v. Texas International Airlines, 546 F.2d 84 (5th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 117, 54 L.Ed.2d 93 (1977). The defendants are not successors in interest to the debtors, nor did they control whether or not the claims asserted in this suit were brought in the earlier proceeding, for the claims are against them. Howell was a party to the earlier action, but it could not have brought RICO claims against third parties in bankruptcy court. The appellees" }, { "docid": "1912477", "title": "", "text": "Am.Jr.2d Judgments § 532 (1969) and cases cited therein. See also Hentschel v. Smith, 278 Minn. 86, 153 N.W.2d 199, 206 (1967) (privies are those who are so connected with the parties in estate or in blood or in law as to be identified with them in interest and consequently to be affected with them by the litigation); Margo-Kraft Distributors, Inc. v. Minneapolis Gas Co., 294 Minn. 274, 278, 200 N.W.2d 45, 47-48 (1972). But see Pirrotta v. Independent School Dist. No. 347, 396 N.W.2d 20, 22 (Minn.1986) (fact that interests may coincide is not enough). Still other courts define privity less rigidly as “a finding that all of the facts and circumstances justify a conclusion that non-party preclusion is proper.” First Alabama Bank v. Parsons Steel, Inc., 747 F.2d 1367, 1378 (11th Cir.1984), rev’d on other grounds, 474 U.S. 518, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986). See Gill and Duffus Services, Inc. v. A.M. Nural Islam, 675 F.2d 404, 405 (D.C.Cir.1982); Oldham v. Pritchett, 599 F.2d 274, 279 (8th Cir.1979); Towle v. Boeing Airplane Co., 364 F.2d 590, 593 (8th Cir.1966). Whatever definition is used, there is a general consensus among courts that the basic requirement of privity is fairness. First Alabama Bank, 747 F.2d at 1378; United States v. Karlen, 645 F.2d 635, 639 (8th Cir.1981) (focus is on whether the application of collateral estop-pel will work an injustice on the party against whom estoppel is urged); Anthan v. Professional Air Traffic Controllers Organization, 672 F.2d 706, 710 (8th Cir.1982); Oldham v. Pritchett, 599 F.2d 274, 279 (8th Cir.1979) (focus is on whether application of collateral estoppel will work an injustice if applied). See also Johnson v. Consolidated Freightways, Inc., 420 N.W. 2d 608, 614 (Minn.1988) (focus is on whether collateral estoppel will work an injustice if applied); Brunsoman v. Seltz, 414 N.W.2d 547, 550 (Minn.Ct.App.1987), petition for review denied (Minn. Jan. 15, 1988) (basic requirement is that the es-topped party’s interests have been sufficiently represented in the first action so that the application of collateral estoppel is not inequitable); Miller v. Northwestern Nat’l Ins. Co., 354" }, { "docid": "20062180", "title": "", "text": "non conveniens. Piper Aircraft, 102 S.Ct. at 263. It would require jurors to hear and decide a dispute that has no connection with this community. And finally, the Defendants have asserted that Costa Rica offers the Plaintiffs an alternative forum with an adequate remedy, an assertion which has not been rebutted by the Plaintiffs. Order of Dismissal at 5. Second, the court finds that the plaintiffs who filed claims in the Sibaja and Aquilar cases are barred by the doctrine of res judicata from bringing their claims in this action. The addition of new plaintiffs to a later complaint does not prevent application of res judicata to those plaintiffs who were parties to prior litigation. See e.g. Sims v. Mack Trucks, Inc., 463 F.Supp. 1068 (E.D.Pa.1979). Nor does that fact that the previous judgment was not entered on the merits, but rather on grounds of forum non conveniens, preclude application of res judicata in this instance. See Pasteska v. Texaco, Inc., 565 F.2d 851 (3d Cir.1977), in which the court held that a district court was bound by an earlier forum non conveniens dismissal entered by another district court where identical objective criteria were relied upon by the appellants and identical material facts underlied the application of those criteria in each case. Third, the court finds that the plaintiffs in Alfaro and in the case before this court are not collaterally estopped from litigating this issue in this court. Collateral estoppel is not generally applicable unless there exists either identity or privity between parties to the previous litigation and those involved in the new litigation. See e.g., In re Gottheiner, 703 F.2d 1136 (9th Cir.1983). For privity between the parties to exist, there must be a substantial identity between them or a sufficient commonality of interests. Id. at 1139. Privity exists, for example, between a controlling shareholder in a corporation and the corporation, Sparks Nugget, Inc. v. Commissioner, 458 F.2d 631 (9th Cir.1972), and between the successor in interest in property and the former owner, In re Kors, Inc., 15 B.R. 444 (Bankr.D.Vt.1981). The court finds that the plaintiffs named" }, { "docid": "18751988", "title": "", "text": "case. Kreager v. General Electric Co., 497 F.2d 468, 472 (2d Cir.), cert. denied, 419 U.S. 861, 95 S.Ct. 111, 42 L.Ed.2d 95 (1974); Astron Industrial Assoc’s v. Chrysler Motors Corp., 405 F.2d 958, 961 (5th Cir.1968). Although ordinarily a stockholder is not bound by determinations made against his corporation, he “has a sufficient interest in litigation by the corporation, so that, if he participates, [he] is bound by or can take advantage of the resulting judgment.” 1B J. Moore, Moore’s Federal Practice ¶0.411[6], at 450 (1984); see Souffront v. Compagnie des Sucreries, 217 U.S. 475, 486-87, 30 S.Ct. 608, 612, 54 L.Ed. 846 (1910). In light of Beagan’s continuous and active “non-party” participation and his apparent day-today leadership role in the prior litigation, we hold that he was in privity with Teltron-ics and is bound by the result in Teltronics’ litigation arising from this cause of action. See Ritchie v. Landau, 475 F.2d 151, 155 n. 2 (2d Cir.1973). Moreover, substantially all of Beagan’s alleged financial losses derive from asserted injuries to Teltronics. Beagan’s pleaded financial losses are the result chiefly of the loss in value of his stock interest in Teltronics, as well as the salary and benefits deriving from his position as its chief executive officer and president. These losses would have been remedied had the earlier litigation been successful. Beagan was thus advancing his own interests by directing the previous litigation on behalf of Teltronics. If a stockholder, officer or director of a corporation controls an action brought on its behalf in furtherance of his own interests, he is bound by the result of that action. See Eagle Transport, Ltd. v. O’Connor, 470 F.Supp. 731, 733 (S.D.N.Y.1979). Next, we hold that the Ericcson defendants in this case are in privity with those involved in the earlier actions, and are therefore entitled to the res judicata effect of this and the previous determinations of this case. A named defendant in the first Southern District action was Tele-fonaktiebolaget LM Ericsson (LM Ericsson Telephone Co.), a Swedish corporation. The present Ericsson defendant, Anaconda-Eriesson Inc., is successor by merger to" }, { "docid": "15597522", "title": "", "text": "power to determine what evidence and arguments should be offered in the litigation and, if appropriate, the appeal.” General Foods Corporation v. Massachusetts Department of Public Health, 648 F.2d 784, 789 (1st Cir.1981). See also Drier v. Tarpon Oil Company, 522 F.2d 199 (5th Cir.1975) (president of corporation held liable because of privity and as a controlling person under 15 U.S.C. § 77o); Kreager v. General Electric Company, 497 F.2d 468, 471 (2d Cir.) (sole shareholder of corporation bound by dismissal of first action brought in the name of his corporation), cert. denied, 419 U.S. 861, 95 S.Ct. 111, 42 L.Ed.2d 95 (1974); Pan American Match, Inc. v. Sears, Roebuck & Co., 454 F.2d 871, 874 (1st Cir.) (subsidiary corporation sufficiently identified with its parent company to represent the legal rights of the parent), cert. denied, 409 U.S. 892, 93 S.Ct. 113, 34 L.Ed.2d 149 (1972); 1B J. Moore, J. Lucas, & T. Currier, Moore’s Federal Practice and Procedure § 0.411[10] at 477-78 (1984 & Supp.1986-87). We agree with the district court that there is no problem of in personam jurisdiction. There are two reasons. First, once in personam jurisdiction has been found over the original party, it exists over the substituted party despite its lack of contacts with the forum if the substituted party had an opportunity to challenge its joinder or substitution. Minnesota Min. & Mfg. Co. v. Eco Chem, Inc., 757 F.2d at 1262-63. See 7C C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1958 at 559-60 (2d ed. 1986). Here, Rockor controlled Explo’s successful challenge to the substitution motion. The second reason is that the minimum contacts necessary for in personam jurisdiction were intertwined with Rockor’s role in the litigation. “In judging minimum contacts, a court properly focuses on ‘the relationship among the defendant, the forum, and the litigation.’ Shaffer v. Heitner, 433 U.S. 186, 204, [97 S.Ct. 2569, 2579, 53 L.Ed.2d 683] (1977).” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984). When substitution was first sought, Rockor had succeeded to Explo-Excoa’s interest" }, { "docid": "1912478", "title": "", "text": "Airplane Co., 364 F.2d 590, 593 (8th Cir.1966). Whatever definition is used, there is a general consensus among courts that the basic requirement of privity is fairness. First Alabama Bank, 747 F.2d at 1378; United States v. Karlen, 645 F.2d 635, 639 (8th Cir.1981) (focus is on whether the application of collateral estop-pel will work an injustice on the party against whom estoppel is urged); Anthan v. Professional Air Traffic Controllers Organization, 672 F.2d 706, 710 (8th Cir.1982); Oldham v. Pritchett, 599 F.2d 274, 279 (8th Cir.1979) (focus is on whether application of collateral estoppel will work an injustice if applied). See also Johnson v. Consolidated Freightways, Inc., 420 N.W. 2d 608, 614 (Minn.1988) (focus is on whether collateral estoppel will work an injustice if applied); Brunsoman v. Seltz, 414 N.W.2d 547, 550 (Minn.Ct.App.1987), petition for review denied (Minn. Jan. 15, 1988) (basic requirement is that the es-topped party’s interests have been sufficiently represented in the first action so that the application of collateral estoppel is not inequitable); Miller v. Northwestern Nat’l Ins. Co., 354 N.W.2d 58, 61-62 (Minn.Ct.App.1984). In First Alabama Bank v. Parsons Steel, Inc., 747 F.2d 1367 (11th Cir.1984), rev’d on other grounds, 474 U.S. 518, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986) , the Eleventh Circuit Court of Appeals discussed privity in a case involving a bankruptcy trustee. ‘Under the federal law of res judicata, a person may be bound by a judgment even though not a party if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative.’ Aerojet-General Corporation v. Askew, 511 F.2d 710, 719 (5th Cir.1975), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). A finding of privity is no more than a finding that all of the facts and circumstances justify a conclusion that nonparty preclusion is proper. Wright, Miller & Cooper, 18 Federal Practice and Procedure § 4459, at p. 418 (1981). ‘Modern decisions search directly for circumstances that justify preclusion ... This process often leads to a conclusion that preclusion is justified as to some matters" }, { "docid": "21792654", "title": "", "text": "regarding the Missile Contract have been sufficiently determined in Daff, it would be needless and redundant for the court to reexamine them. Therefore the court considers the issue of collateral estop-pel in this case. Collateral estoppel applies to final judgments of prior lawsuits between the same parties or their privies. S. Pac. R. Co. v. United States, 168 U.S. 1, 48-49, 18 S.Ct. 18, 42 L.Ed. 355 (1897); Jet, Inc. v. Sewage Aeration Sys., 223 F.3d 1360, 1365-66 (Fed. Cir.2000). Because privity is a question of fact, there is no universal definition or test for “privity.” Martin v. United States, 30 Fed.Cl. 542, 550 (1994) (citing Lowell Stoats Mining Co. v. Philadelphia Elec. Co., 878 F.2d 1271, 1276 (10th Cir.1989)). Generally officers, directors, and shareholders are not privies of a corporation, and so judgment against one is not binding on the other. 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper § 4460. The question of privity, however, is a matter of substance, not form. Chicago, R.I. & P. Ry. Co. v. Schendel, 270 U.S. 611, 618, 46 S.Ct. 420, 70 L.Ed. 757 (1926). Courts have frequently found privity to exist between a corporation and its controlling owner, particularly where the controlling owner has participated extensively in the litigation. See Drier v. Tarpon Oil Co., 522 F.2d 199, 200 (5th Cir.1975) (finding privity between a corporation and its president where the president was also a major stockholder and controlled the earlier law suit); Sparks Nugget, Inc. v. Comm’r of Internal Revenue, 458 F.2d 631, 638-39 (9th Cir.1972) (finding privity between a closely held corporation and its sole or controlling stockholder); Nichols v. Alker, 126 F.Supp. 679, 682-83 (E.D.N.Y.1954) (finding privity between corporation and its directors, officers, and agents in fraud suit where the fraud occurred during their employment with the corporation), affd, 231 F.2d 68 (2d Cir.1956). Some courts have gone so far as to presume privity between a close corporation and its controlling stockholder, on the assumption that in litigation involving the corporation, the stockholder’s interest is sufficiently common to that of the corporation. Sparks Nugget, 458" }, { "docid": "23544390", "title": "", "text": "Nash, Wilson and Edgecombe Counties. See Exhibit “A,” Activity 4 Report, “Master Map” (submitted with North Carolina and United States of America motions for partial summary judgment). As a result of his conviction on all eight counts Robert Earl Ward, Jr., is estopped from denying his knowing participation in the PCB dumpings in those counties. And, as a consequence, he may not seek contribution from the third-party defendants for the cleanup costs of the spills in those counties as he is an intentional tortfeasor. Order of 11 May 1984; N.C.Gen.Stat. § 1B-1(c); 46 Am.Jur.2d, Joint Ventures, § 47 (1969); W. Prosser, Law of Torts § 50 (4th ed. 1971); Restatement (Second) of Torts § 886A(3). WTC is also collaterally estopped from denying its knowing participation in the illegal dumpings. Normally, collateral estoppel or issue preclusion applies only where there is identity of parties, subject matter and issues in the previous litigation. Smoky Mountain Enterprises, Inc. v. Rose, 283 N.C. 373, 196 S.E.2d 189 (1973). However, a close corporation in privity with its dominant officers may be bound by the acts of its officers for purposes of collateral estoppel. Drier v. Tarpon Oil Company, 522 F.2d 199 (5th Cir.1975); Smoky Mountain Enterprises, 283 N.C. at 373, 196 S.E.2d at 189. Privity between Ward and WTC exists in this case. At all times relevant to this lawsuit, Ward owned the majority, controlling interest in WTC, was its president, chief executive officer and decision maker. The corporation was essentially Ward’s alter ego and is bound by the decisions he made as head corporate officer. Kreager v. General Electric Co., 497 F.2d 468 (2d Cir.), cert. denied, 419 U.S. 861, 95 S.Ct. 111, 42 L.Ed.2d 95, reh’g denied 419 U.S. 1041, 95 S.Ct. 530, 42 L.Ed.2d 319 (1974). So, to the extent that Ward is barred from seeking contribution from the third-party defendants, WTC is also barred. The third-party defendants argue that Ward and WTC should also be barred from claiming contribution for the remaining sites outside the Eastern District. There are three distinct categories of additional sites: 1. Dumpings along roads in Lee" }, { "docid": "18751989", "title": "", "text": "pleaded financial losses are the result chiefly of the loss in value of his stock interest in Teltronics, as well as the salary and benefits deriving from his position as its chief executive officer and president. These losses would have been remedied had the earlier litigation been successful. Beagan was thus advancing his own interests by directing the previous litigation on behalf of Teltronics. If a stockholder, officer or director of a corporation controls an action brought on its behalf in furtherance of his own interests, he is bound by the result of that action. See Eagle Transport, Ltd. v. O’Connor, 470 F.Supp. 731, 733 (S.D.N.Y.1979). Next, we hold that the Ericcson defendants in this case are in privity with those involved in the earlier actions, and are therefore entitled to the res judicata effect of this and the previous determinations of this case. A named defendant in the first Southern District action was Tele-fonaktiebolaget LM Ericsson (LM Ericsson Telephone Co.), a Swedish corporation. The present Ericsson defendant, Anaconda-Eriesson Inc., is successor by merger to LM Ericsson Telecommunications, Inc., which was a named defendant in all the prior proceedings, and is the United States distributor for Telefonaktiebolaget LM Ericsson. LM Ericsson TeleComm, Inc., was the wholly-owned subsidiary of LM Ericsson Telecommunications, Inc., until January, 1982, after which it was merged into Anaconda-Ericsson, Inc. From these relationships among the defendants, we conclude that they are in privity with one another. See Southwest Airlines Co. v. Texas International Airlines, Inc., 546 F.2d 84, 95 (5th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 117, 54 L.Ed.2d 93 (1977); Pan American Match, Inc. v. Sears, Roebuck & Co., 454 F.2d 871, 874 (1st Cir.), cert. denied, 409 U.S. 892, 93 S.Ct. 113, 34 L.Ed.2d 149 (1972); Astron Industrial Assoc’s v. Chrysler Motors Corp., 405 F.2d 958, 961 (5th Cir.1968). LM Ericsson Tele-Comm, Inc., was alleged to be a co-conspirator in the second Southern District action filed by Teltronics against the Ericsson defendants, and is entitled to the res judicata effect of that decision. Finally, Beagan seeks to assert the same cause of action" }, { "docid": "15847201", "title": "", "text": "he actually controlled the prior litigation and had a direct financial interest in the outcome of that lawsuit. His ownership of CCHCS, he argues, is not sufficient. Applying this supposed test, Gottheiner argues that since he was without funds to hire an attorney and since the prior judgment resulted from his failure to oppose the government’s motion, he did not control the CCHCS litigation. He further argues that since CCHCS was completely defunct at the time, he had no financial interest in the outcome of the lawsuit against the corporation. Gottheiner’s argument assumes a definition of privity far more rigid than the law requires. Privity exists when there is “substantial identity” between parties, that is, when there is sufficient commonality of interest. United States v. ITT Rayonier, Inc., 627 F.2d 996, 1003 (9th Cir.1980). When a person owns most or all of the shares in a corporation and controls the affairs of the corporation, it is presumed that in any litigation involving that corporation the individual has sufficient commonality of interest. Sparks Nugget, Inc. v. Commissioner, 458 F.2d 631, 639 (9th Cir.1972). As this court has stated before, the public policies underlying the doctrine of collateral estoppel, “as a bar to repetitious litigation, would support a finding of privity between a close corporation and its sole or controlling stockholder.” Id. See also Drier v. Tarpon Oil Co., 522 F.2d 199, 200 (5th Cir.1975); United States v. Webber, 396 F.2d 381, 386-88 (3rd Cir.1968); Warnecke v. Laclede Gas Co., 455 F.Supp. 444, 446 (E.D.Mo.1978), aff’d sub nom., Laclede Gas Co. v. G.W. Warnecke Corp., 604 F.2d 561 (8th Cir.1979). Here it is undisputed that Gottheiner owned all the outstanding shares of CCHCS stock and exercised control over its day to day affairs. Thus there is no question that privity exists and we conclude upon a de novo review of this legal issue that the lower court decided the issue correctly. 2. Actually litigated Another prerequisite to the application of collateral estoppel is that the disputed issue must have been actually litigated in the prior proceeding. General Teamsters, Auto Truck Drivers and" }, { "docid": "20062181", "title": "", "text": "was bound by an earlier forum non conveniens dismissal entered by another district court where identical objective criteria were relied upon by the appellants and identical material facts underlied the application of those criteria in each case. Third, the court finds that the plaintiffs in Alfaro and in the case before this court are not collaterally estopped from litigating this issue in this court. Collateral estoppel is not generally applicable unless there exists either identity or privity between parties to the previous litigation and those involved in the new litigation. See e.g., In re Gottheiner, 703 F.2d 1136 (9th Cir.1983). For privity between the parties to exist, there must be a substantial identity between them or a sufficient commonality of interests. Id. at 1139. Privity exists, for example, between a controlling shareholder in a corporation and the corporation, Sparks Nugget, Inc. v. Commissioner, 458 F.2d 631 (9th Cir.1972), and between the successor in interest in property and the former owner, In re Kors, Inc., 15 B.R. 444 (Bankr.D.Vt.1981). The court finds that the plaintiffs named in this lawsuit do not share a sufficient commonality of interests or substantial identity such that litigation affecting the rights of those who were parties in the Sibaja action is necessarily conclusive as to the rights of the new parties named in the instant action. Although the individual plaintiffs named in this action sustained their injuries in the same circumstances as those involved in the other actions, their interests derive from their own personal circumstances and injuries. On this basis, the court finds no privity between the parties in this case. Finally, the court finds that, as to the Alfaro plaintiffs and the new plaintiffs named in the instant action, the doctrine of forum non conveniens requires dismissal of this action for the same reasons cited by the district court in Sibaja. Defendants point out several determinative factors in the Motion to Dismiss. a. Each individual plaintiff was allegedly exposed to the products complained of in Costa Rica. b. Each individual plaintiff is a citizen and resident of Costa Rica. c. The evidence and witnesses" }, { "docid": "21792655", "title": "", "text": "270 U.S. 611, 618, 46 S.Ct. 420, 70 L.Ed. 757 (1926). Courts have frequently found privity to exist between a corporation and its controlling owner, particularly where the controlling owner has participated extensively in the litigation. See Drier v. Tarpon Oil Co., 522 F.2d 199, 200 (5th Cir.1975) (finding privity between a corporation and its president where the president was also a major stockholder and controlled the earlier law suit); Sparks Nugget, Inc. v. Comm’r of Internal Revenue, 458 F.2d 631, 638-39 (9th Cir.1972) (finding privity between a closely held corporation and its sole or controlling stockholder); Nichols v. Alker, 126 F.Supp. 679, 682-83 (E.D.N.Y.1954) (finding privity between corporation and its directors, officers, and agents in fraud suit where the fraud occurred during their employment with the corporation), affd, 231 F.2d 68 (2d Cir.1956). Some courts have gone so far as to presume privity between a close corporation and its controlling stockholder, on the assumption that in litigation involving the corporation, the stockholder’s interest is sufficiently common to that of the corporation. Sparks Nugget, 458 F.2d at 639; Warnecke v. Laclede Gas Co., 455 F.Supp. 444, 445-46 (D.Mo.1978), aff'd, 604 F.2d 561 (8th Cir.1979). The presumption of privity is particularly strong in cases involving fraud, where courts have held that a suit for fraud against a corporation will bar a subsequent fraud suit against the corporation’s officers, directors, or agents. Lowell Stoats Mining Co., 878 F.2d at 1276 (“Litigation involving alleged fraudulent conveyances by a corporation would be res judicata in favor of such persons who conducted its affairs and determined its policies, if the plaintiff failed in an action against the corporation to prove the existence of the fraudulent conveyances.”); Nichols, 126 F.Supp. at 682 (“Litigation involving alleged fraud and conspiracy by a corporation would be res judicata in favor of such persons who conducted its affairs and determined its policies if the plaintiff failed in an action against the corporation to prove the existence of the fraud of conspiracy.”). Here, plaintiff asserts that defendant breached the Missile Contract — the same contract that the court in Daff determined" }, { "docid": "18869813", "title": "", "text": "LASKER, District Judge. This action arises out of a charter party agreement between Eagle Transport and Atlantic Shipping, Inc. Prior proceedings between Eagle and Atlantic resulted in a decision by an arbitration panel that Atlantic was liable to Eagle for breach of the agreement. Eagle now asserts that O’Con-nor and O’Connor & Sons are bound, as privies of Atlantic, by rulings made during the prior proceedings; that both defendants are alter egos of Atlantic and therefore personally liable for Atlantic’s breach; and that O’Connor & Sons is additionally liable to Eagle as Atlantic’s guarantor for purposes of the charter party agreement. Eagle moves for summary judgment on these claims. In an earlier action in this court, Judge Metzner, after a hearing conducted before Judge, then Magistrate, Goettel, held that Eagle and Atlantic had concluded a valid charter party and ordered that the parties proceed to arbitration for a determination whether Atlantic had breached the agreement. (75 Civ. 4488, June 3,1976) A panel of three arbitrators found that Atlantic had breached the agreement and awarded Eagle damages amounting to $557,925.15. That award was confirmed by Judge Owen of this court (Memorandum Decision, 78 Civ. 2199, August 30, 1978). Relying on the Restatement of Judgments § 83 (1942), Eagle argues that the determinations in those earlier actions are binding on John O’Con-nor and O’Connor & Sons because, though not themselves parties to those proceedings, they were privies of Atlantic. Eagle has established that there was privity between Atlantic and John E. O’Connor. A determination made against a corporation will be binding on a stockholder, officer or director in a subsequent proceeding if the individual controlled the earlier action in the furtherance of his own interests. Kreager v. General Electric Corp., 497 F.2d 468, 472 (2d Cir.), cert. denied, 419 U.S. 861, 95 S.Ct. 111, 42 L.Ed.2d 95 (1974); Ritchie v. Landau, 475 F.2d 151, 155 n.2 (2d Cir. 1973); Drier v. Tarpon Oil Co., 522 F.2d 199, 200 (5th Cir. 1975). John E. O’Connor was the president, sole director and sole shareholder of Atlantic. Because of his position, it is difficult to" } ]

[ { "docid": "9399368", "title": "", "text": "Bulletin F (revised January 1942) 58, 59, 61, 66, 67, reprinted in [1981] Index CCH Stand. Fed. Tax Rep. ¶¶ 310 etseq. The majority discusses in great length how this taxpayer’s industrial depreciation experts derived the useful lives of its railroad gradings and tunnel bores. I perceive no need to repeat that discussion. It suffices to say the methodology consists of three steps: (1) the depiction of available retirement experience on partial or \"stub survivor” curves; (2) the approximation of a useful life for the entire asset class based on a comparison of the stub curves and the 18 standard full-length survivor curves developed in industrial studies at Iowa State College (now Iowa State University); and (3) the evaluation and concomitant refinement of that approximate useful life in light of present conditions and anticipated developments within the industry. This meth odology has been employed for almost 50 years in financial and regulatory accounting and has been endorsed (as the majority concedes) by several recent court decisions for purposes of the federal income tax. I find none of defendant’s arguments against the application of the methodology to these facts persuasive. For example, defendant argues that the Iowa standard curves can be used only if the data on actual retirements clearly demonstrate retirements will increase as the asset class ages. That argument is inherently flawed and the majority apparently agrees with me that the argument should be ignored. Plaintiffs experts on industrial depreciation included the civil engineer who developed the Iowa curves after extensive study. His testimony (and that of plaintiffs other depreciation expert) is clear that because the retirement rate for any industrial property will eventually increase, the Iowa curves are applicable to all industrial property. Defendant offered no contrary expert testimony on this point. Moreover, nothing within common sense dictates that the increasing retirement rate will be equally apparent at all times while the assets are in use. Industrial retirement experience simply does not always fall into neat arithmetic progressions. To hold plaintiff to such a standard ignores reality. It is critical to point out that the Iowa curves were" } ]

[ { "docid": "17350787", "title": "", "text": "shown with certainty, a reasonable approximation will suffice. Burlington Northern, Inc. v. United States, 676 F.2d 566, 573 (Ct.Cl.1982). Hawkins contends that because he cannot use his artworks after he dies, the Tax Court erred in finding that he did not satisfy the useful life requirement by introducing evidence of his life expectancy based upon standard mortality tables. We cannot agree with Hawkins. The taxpayer introduced no evidence of the inherent useful life of the artworks themselves. Indeed, the IRS has recognized that art objects frequently will not have a determinable useful life — and hence will not be depreciable — because “[w]hile the actual physical condition of the property may influence the value placed on the object, it will not ordinarily limit or determine the useful life.” Rev.RuI. 68-232, 1968-1 Cum.Bull. 79. Moreover, the record supports the Tax Court’s finding that Hawkins introduced no evidence showing that he intended to practice law until he dies. Thus, while it is unlikely that Hawkins will use the artworks beyond his life expectancy, there is no clear evidence as to whether such use will terminate short of Hawkins’ life expectancy. In addition, Hawkins’ position has little support in the case law. For example, in Coussement v. Commissioner, 391 F.2d 227, 229 (6th Cir.1968), aff’g, 25 Tax Ct.Rep. (CCH) 930 (1966), the Sixth Circuit summarily affirmed the Tax Court’s decision which rejected the taxpayer’s contention that his rental property had a useful life of twenty years based upon his life expectancy, and instead held that the Commissioner properly determined that the useful life was thirty-three and one-third years based upon its present physical condition and usage. See also Niagara Mohawk Power Corp. v. United States, 525 F.2d 1380, 1386-1387, 207 Ct.Cl. 576 (Ct.C1.1975) (useful life of water rights is indeterminable and cannot be measured by taxpayer’s period of use). Hampton Pontiac, Inc. v. United States, 294 F.Supp. 1073 (D.S.C.1967), upon which Hawkins places heavy reliance, is plainly distinguishable from this case. In Hampton Pontiac, the taxpayer held an intangible asset — a franchise agreement that was a personal services contract — which would" }, { "docid": "8288311", "title": "", "text": "to be classed as business assets, and that such articles are not subject to such depreciation as is allowable as a deduction from gross income for income tax purposes, the value and desirability of such articles, as a general rule, increasing with age, and inasmuch as the rest of such furniture as may properly be classed as “business assets” has not been shown separate from the cost of the works of art and curios, the Committee recommends that the action of the Income Tax Unit in disallowing depreciation in the amount of _ dollars be sustained until such time as the taxpayer may furnish evidence that depreciation is properly to be allowed. Rev.Rul. 68-232, 1968-1 C.B. 79, which has superseded A.R.R. 4530, provides : A valuable and treasured art piece does not have a determinable useful life. While the actual physical condition of the property may influence the value placed on the object, it will not ordinarily limit or determine the useful life. Accordingly, depreciation of works of art generally is not allowable. A.R.R. 4530, C.B. 11-2,145 (1923), is superseded, since the position set forth therein is restated under current law in this Revenue Ruling. The taxpayer argues that, despite the fact that the paintings are works of art, they should also be considered business assets because they had been used in the taxpayer’s business. The taxpayer also argues that the logic of A.R.R. 4530 has been challenged and that the instant case is a good one in which to refuse to follow the general rule of non-deprecia■bility of art works. N. G. Bavesi, Inc. v. Commissioner, 5 T.C.M. 450 (1946), is cited by the taxpayer as support for its contention that the paintings should be held to be depreciable. The assets involved in that case were designs for engravings that had a definite useful life of less than one year. There was no mention of the possibility that the assets in question were non-depreciable. This case does not support the proposition that the 1929 paintings are depreciable assets. We agree with the material quoted by the taxpayer from 4" }, { "docid": "17350788", "title": "", "text": "evidence as to whether such use will terminate short of Hawkins’ life expectancy. In addition, Hawkins’ position has little support in the case law. For example, in Coussement v. Commissioner, 391 F.2d 227, 229 (6th Cir.1968), aff’g, 25 Tax Ct.Rep. (CCH) 930 (1966), the Sixth Circuit summarily affirmed the Tax Court’s decision which rejected the taxpayer’s contention that his rental property had a useful life of twenty years based upon his life expectancy, and instead held that the Commissioner properly determined that the useful life was thirty-three and one-third years based upon its present physical condition and usage. See also Niagara Mohawk Power Corp. v. United States, 525 F.2d 1380, 1386-1387, 207 Ct.Cl. 576 (Ct.C1.1975) (useful life of water rights is indeterminable and cannot be measured by taxpayer’s period of use). Hampton Pontiac, Inc. v. United States, 294 F.Supp. 1073 (D.S.C.1967), upon which Hawkins places heavy reliance, is plainly distinguishable from this case. In Hampton Pontiac, the taxpayer held an intangible asset — a franchise agreement that was a personal services contract — which would terminate upon his death, and the court therefore found that the franchise’s useful life equaled the life expectancy of the taxpayer. Id. at 1077-1079. In contrast, in this case, Hawkins’ tangible assets likely will not cease to exist or appreciably diminish in value upon the taxpayer’s death and, thus, the rationale of Hampton Pontiac is not applicable here. The Tax Court, therefore, did not clearly err in finding that Hawkins failed to establish that his artworks had a determinable useful life. Although this failure of proof precludes Hawkins from claiming an investment tax credit on his art purchases, the Tax Court also held that Hawkins failed to meet the requirements of showing a salvage value for his property. It found that “[i]n this record, there is a complete failure to establish a salvage value for the art works [sic] in any amount or at any point in time.” We agree. The expert witnesses for both the taxpayer and for the Commissioner testified that any estimate of salvage value of the artworks would be highly speculative," }, { "docid": "17350784", "title": "", "text": "a partnership loss only to the extent of the adjusted basis in his or her partnership interest at the end of the partnership year in which the loss occurred. 26 U.S.C. § 704(d). Hawkins has introduced no evidence showing what — if any — adjusted basis the former partners had in their shares before they sold their interests. To conclude, section 1.706-l(c)(2)(ii) of the Treasury Regulations on Income Tax specifically provide that in the absence of an interim closing of the partnership books upon a transfer of partnership shares, partnership profits or losses must be prorated among the transferor and transferee partners based upon the respective portion of the partnership’s tax year that each was a member of the partnership. The Commissioner utilized precisely this method to allocate to Hawkins only 54/365 of his distributive share of Americana’s 1973 loss. Hawkins has not shown that this allocation was erroneous nor has he suggested a better method of allocation. Accordingly, we affirm the Tax Court’s judgment sustaining the Commissioner’s determination on this issue. B. The Investment Tax Credit. The second issue presented here is whether the Tax Court properly held that Hawkins was not entitled to claim an investment tax credit for the artworks that he purchased in 1973 and displayed in his law office. Again, there is little dispute over the controlling legal principles. Sections 38 and 46 through 48 of the Code provide an investment credit against tax upon the purchase and placement in service of certain qualified investment property, commonly referred to as “section 38 property.” See 26 U.S.C. §§ 38, 46-48. To qualify as section 38 property, the objects in question must be “property with respect to which depreciation * * * is allowable.” 26 U.S.C. § 48(a)(1); Treas.Reg. § 1.48-1(b)(1). As noted above, section 167(a) of the Code allows a depreciation deduction for the wear and tear, exhaustion or obsolescence of property used in a taxpayer’s trade or business. The aggregate of depreciation deductions allowable is the difference between the cost or basis of the depreciable property and its salvage value at the end of its" }, { "docid": "17350790", "title": "", "text": "and neither witness would commit himself to a specific figure for reasonably estimated salvage value — either on a whole or on an individual basis. Hawkins contends that the absence of a specific estimate is unimportant, because he need only establish that some salvage value exists and his expert witness in fact testified that the artworks will have some value if they are sold upon the taxpayer’s death. Although a taxpayer might not need to prove a specific dollar figure for salvage value to qualify for an investment tax credit, he or she must demonstrate that the depreciable basis of the property in question exceeds its salvage value to establish that the property is subject to a depreciation allowance, and thus that it qualifies as section 38 property. See supra, at 352-353. Hawkins’ evidence here not only failed to assign a specific salvage value to the artworks, it even failed to indicate whether that salvage value was less than the depreciable basis of the property. The Tax Court, therefore, did not err in finding that Hawkins failed to meet his burden of proof with respect to the salvage value requirement of the investment tax credit. In summary, the taxpayer has not demonstrated that the artworks in question have either a determinable useful life or salvage value. Consequently, the Tax Court correctly determined that the artworks were not depreciable assets and that they did not qualify as section 38 property. The court, therefore, did not err in sustaining the Commissioner’s disallowal of the investment tax credit claimed by Hawkins. III. CONCLUSION For the above-stated reasons, the decision of the Tax Court is affirmed. . Rosemary Hawkins, Alexis Hawkins’ wife, is a party to this action solely because she signed the joint income tax return for the years in question. For convenience, we will refer only to Alexis Hawkins or the taxpayer in the remainder of this opinion. . The parties tried this case before Judge Cynthia Holcomb Hall. Prior to rendering her decision, however, Judge Hall resigned from the Tax Court. Thereafter, the case was reassigned to Judge Jules Komer, III," }, { "docid": "17350785", "title": "", "text": "Tax Credit. The second issue presented here is whether the Tax Court properly held that Hawkins was not entitled to claim an investment tax credit for the artworks that he purchased in 1973 and displayed in his law office. Again, there is little dispute over the controlling legal principles. Sections 38 and 46 through 48 of the Code provide an investment credit against tax upon the purchase and placement in service of certain qualified investment property, commonly referred to as “section 38 property.” See 26 U.S.C. §§ 38, 46-48. To qualify as section 38 property, the objects in question must be “property with respect to which depreciation * * * is allowable.” 26 U.S.C. § 48(a)(1); Treas.Reg. § 1.48-1(b)(1). As noted above, section 167(a) of the Code allows a depreciation deduction for the wear and tear, exhaustion or obsolescence of property used in a taxpayer’s trade or business. The aggregate of depreciation deductions allowable is the difference between the cost or basis of the depreciable property and its salvage value at the end of its useful life. Treas.Reg. § 1.167(a)-l(a). See Dinkins v. Commissioner, 378 F.2d 825, 830 (8th Cir.1967). Thus, in order for property to be depreciable, and hence to qualify as section 38 property, it must have a determinable useful life and a salvage value that is less than its depreciable basis. See Harrah’s Club v. United States, supra, 661 F.2d at 206-208. It is the taxpayer’s burden to demonstrate that he or she has satisfied all the requirements to claim an investment tax credit. See United States v. Kimball Gas Company, 358 F.2d 133, 134 (5th Cir.1966); U.S.Tax Ct.R. 142(a). The Tax Court held that Hawkins failed to meet that burden in this case. It found that although Hawkins proved that his artworks had a depreciable basis, he failed to establish a useful life or salvage value for that property. Because these factual findings are not clearly erroneous, we must affirm them and the Tax Court’s judgment against Hawkins on his investment tax credit claim. The useful life of an asset for depreciation purposes need not be" }, { "docid": "17350778", "title": "", "text": "expense when it closed its fiscal year on July 31, 1973 — which is after the taxpayer entered the partnership — and he is entitled to his full distributive share of Americana’s depreciation deduction. The Tax Court rejected Hawkins’ position, and held that Americana’s deprecia tion deduction must be allocated over its entire fiscal year and that Hawkins was entitled to deduct only 54/365 of his pro rata share of Americana’s depreciation expense for fiscal year 1973. We affirm. Section 167 states that “[t]here shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)” of certain property. 26 U.S.C. § 167(a). It also provides for several alternative methods of computing depreciation and sets various limitations on the use of those methods. Nowhere, however, does section 167 state that the depreciation deduction is an annual event as the taxpayer contends. Indeed, as a matter of accounting theory, depreciation is simply an accounting device intended to allocate the cost of using an asset to the periods in which that use contributes to revenue by approximating the gradual diminution in value of the asset over time due to age, wear and tear, and obsolescence. See Massey Motors, Inc. v. United States, 364 U.S. 92, 80 S.Ct. 1411, 4 L.Ed.2d 1592 (1960); Hertz Corp. v. United States, 364 U.S. 122, 80 S.Ct. 1420, 4 L.Ed.2d 1603 (1960). Thus, as the Tax Court properly recognized, depreciation theoretically occurs continuously over the useful life of an asset, rather than, as Hawkins suggests, on the day or days that a taxpayer’s bookkeeper periodically finds it convenient to make the entry in the books. Moreover, Hawkins’ position is contrary to the relevant case law. It is clear that section 706 and the assignment of income doctrine prohibit a taxpayer from deducting any portion of a loss incurred by a partnership prior to the taxpayer’s entry into the partnership. E.g., Snell v. United States, 680 F.2d 545, 547-548 (8th Cir.), cert. denied,-U.S.-, 103 S.Ct. 344, 74 L.Ed.2d 384 (1982); Rodman v. Commissioner, 542 F.2d 845, 856-859 (2d" }, { "docid": "17350791", "title": "", "text": "Hawkins failed to meet his burden of proof with respect to the salvage value requirement of the investment tax credit. In summary, the taxpayer has not demonstrated that the artworks in question have either a determinable useful life or salvage value. Consequently, the Tax Court correctly determined that the artworks were not depreciable assets and that they did not qualify as section 38 property. The court, therefore, did not err in sustaining the Commissioner’s disallowal of the investment tax credit claimed by Hawkins. III. CONCLUSION For the above-stated reasons, the decision of the Tax Court is affirmed. . Rosemary Hawkins, Alexis Hawkins’ wife, is a party to this action solely because she signed the joint income tax return for the years in question. For convenience, we will refer only to Alexis Hawkins or the taxpayer in the remainder of this opinion. . The parties tried this case before Judge Cynthia Holcomb Hall. Prior to rendering her decision, however, Judge Hall resigned from the Tax Court. Thereafter, the case was reassigned to Judge Jules Komer, III, who issued the Tax Court’s opinion. . The Commissioner also issued Hawkins a statutory notice of deficiency for 1974 in the amount of $9,738. The Commissioner reached this determination by limiting the taxpayer’s charitable contribution deduction to $12,500, instead of the $40,000 deduction claimed by Hawkins. The Tax Court held that Hawkins was entitled to deduct $26,500 for his charitable contribution, and thus it reduced the Commissioner’s asserted deficiency for 1974. Neither party appeals from this ruling. . The Commissioner disputes the taxpayer’s claim that Americana’s 1973 loss resulted primarily from its depreciation deduction and lost rent arising from vacancies in apartments owned by the partnership. For purposes of this opinion, however, we will assume that depreciation and lost apartment rent were the exclusive components of the loss incurred by Americana in 1973, as well as Hawkins’ distributive share of that loss. . The tax regulations reflect this theoretical basis for depreciation by stating that “[t]he period for depreciation of an asset shall begin when the asset is placed in service and shall end when" }, { "docid": "17350775", "title": "", "text": "owner of Americana stock for only fifty-four days of the 1973 fiscal year, he could deduct no more than 54/365 of his allocable share of the partnership’s $47,498 loss— $7,027. In calendar year 1973, Hawkins also purchased for $126,453.15 various works of art, including mosaics, paintings, and statues. The taxpayer displayed these objects in his law office at various times. On his 1913 income tax return, Hawkins claimed an investment tax credit pursuant to 26 U.S.C. § 38 equal to the purchase price of the artworks. The Commissioner disallowed this investment tax credit on the ground that section 38 was inapplicable because the art pieces were not of a character properly subject to an allowance for depreciation under 26 U.S.C. § 167. In May, 1978, Hawkins petitioned the Tax Court for a redetermination of the asserted deficiency. A trial was held on October 1 and 2, 1980. On August 4, 1982, the Tax Court issued its opinion sustaining the Commissioner’s determination with respect to the loss deduction and investment tax credit claimed by Hawkins. The taxpayer now appeals from this decision. II. DISCUSSION A. The Partnership Loss Deduction. The first issue we face is whether the Tax Court properly ruled that Hawkins was entitled to deduct only 54/365 of his pro rata, or distributive, share of the loss sustained by Americana in its 1973 tax year rather than his full pro rata share. The primary legal principles which govern this issue are not in dispute. A partnership, of course, is not a taxable entity. 26 U.S.C. § 701. Each partner reports his or her distributive share of partnership profits or losses on his or her individual income tax return. 26 U.S.C. § 702(a). Section 706(c)(2)(A) of the Internal Revenue Code (Code) states that the tax year of a partnership is closed with respect to a partner who sells his or her entire interest in the partnership and that such partner’s distributive share of the partnership profits or losses is determined “for the period ending with such sale.” 26 U.S.C. § 706(c)(2)(A). Conversely, the new partner is limited to his or" }, { "docid": "17350774", "title": "", "text": "HEANEY, Circuit Judge. Alexis and Rosemary Hawkins appeal from the United States Tax Court’s judgment sustaining the federal income tax deficiency asserted against them by the Commissioner of Internal Revenue (Commissioner). The Tax Court held that the Commissioner properly reduced the partnership loss deducted by the taxpayers and properly disallowed an investment tax credit that they claimed. We affirm. I. BACKGROUND On February 9, 1978, the Commissioner issued to the taxpayers a statutory notice of deficiency asserting a federal income tax deficiency for 1973 in the amount of $33,-488, of which $32,068 remains in dispute. The Commissioner based the deficiency challenged here on two principal transactions. On June 8, 1973, Alexis Hawkins purchased thirteen of the fifty-eight outstanding shares of Americana C-G Company, Ltd. (Americana), an Iowa limited partnership. Americana’s fiscal year ended on July 31, 1973. On Hawkins’ 1973 income tax return, he claimed a loss deduction of $47,-498, which equaled 13/58 of the loss incurred by Americana over its entire 1973 fiscal year. The Commissioner, however, determined that because Hawkins had been an owner of Americana stock for only fifty-four days of the 1973 fiscal year, he could deduct no more than 54/365 of his allocable share of the partnership’s $47,498 loss— $7,027. In calendar year 1973, Hawkins also purchased for $126,453.15 various works of art, including mosaics, paintings, and statues. The taxpayer displayed these objects in his law office at various times. On his 1913 income tax return, Hawkins claimed an investment tax credit pursuant to 26 U.S.C. § 38 equal to the purchase price of the artworks. The Commissioner disallowed this investment tax credit on the ground that section 38 was inapplicable because the art pieces were not of a character properly subject to an allowance for depreciation under 26 U.S.C. § 167. In May, 1978, Hawkins petitioned the Tax Court for a redetermination of the asserted deficiency. A trial was held on October 1 and 2, 1980. On August 4, 1982, the Tax Court issued its opinion sustaining the Commissioner’s determination with respect to the loss deduction and investment tax credit claimed by Hawkins. The" }, { "docid": "17350779", "title": "", "text": "periods in which that use contributes to revenue by approximating the gradual diminution in value of the asset over time due to age, wear and tear, and obsolescence. See Massey Motors, Inc. v. United States, 364 U.S. 92, 80 S.Ct. 1411, 4 L.Ed.2d 1592 (1960); Hertz Corp. v. United States, 364 U.S. 122, 80 S.Ct. 1420, 4 L.Ed.2d 1603 (1960). Thus, as the Tax Court properly recognized, depreciation theoretically occurs continuously over the useful life of an asset, rather than, as Hawkins suggests, on the day or days that a taxpayer’s bookkeeper periodically finds it convenient to make the entry in the books. Moreover, Hawkins’ position is contrary to the relevant case law. It is clear that section 706 and the assignment of income doctrine prohibit a taxpayer from deducting any portion of a loss incurred by a partnership prior to the taxpayer’s entry into the partnership. E.g., Snell v. United States, 680 F.2d 545, 547-548 (8th Cir.), cert. denied,-U.S.-, 103 S.Ct. 344, 74 L.Ed.2d 384 (1982); Rodman v. Commissioner, 542 F.2d 845, 856-859 (2d Cir.1976). Moreover, Richardson v. Commissioner, 693 F.2d 1189 (5th Cir.1982), expressly refutes Hawkins’ depreciation argument within the context of a partnership. In Richardson, the Fifth Circuit affirmed a Tax Court decision holding that under section 706 and the assignment of income doctrine, the taxpayers were entitled to deduct only 1/365 of the depreciation allowance reported by the partnership of which they were members because they did not join the partnership until the last day of its tax year. Id. at 1192-1194. Notwithstanding the analysis above, Hawkins contends that he is entitled to his full distributive share of Americana’s depreciation deduction because the members of the partnership have agreed that depreciation is to be allocated on an annual basis among partners of record at the close of the fiscal year, Americana and its partners have followed this practice uniformly in the past, and the Internal Revenue Service (IRS) did not object to this practice when it audited the partnership returns for the fiscal years ending in 1969, 1970, 1971 and 1972. These contentions are of no" }, { "docid": "17350789", "title": "", "text": "terminate upon his death, and the court therefore found that the franchise’s useful life equaled the life expectancy of the taxpayer. Id. at 1077-1079. In contrast, in this case, Hawkins’ tangible assets likely will not cease to exist or appreciably diminish in value upon the taxpayer’s death and, thus, the rationale of Hampton Pontiac is not applicable here. The Tax Court, therefore, did not clearly err in finding that Hawkins failed to establish that his artworks had a determinable useful life. Although this failure of proof precludes Hawkins from claiming an investment tax credit on his art purchases, the Tax Court also held that Hawkins failed to meet the requirements of showing a salvage value for his property. It found that “[i]n this record, there is a complete failure to establish a salvage value for the art works [sic] in any amount or at any point in time.” We agree. The expert witnesses for both the taxpayer and for the Commissioner testified that any estimate of salvage value of the artworks would be highly speculative, and neither witness would commit himself to a specific figure for reasonably estimated salvage value — either on a whole or on an individual basis. Hawkins contends that the absence of a specific estimate is unimportant, because he need only establish that some salvage value exists and his expert witness in fact testified that the artworks will have some value if they are sold upon the taxpayer’s death. Although a taxpayer might not need to prove a specific dollar figure for salvage value to qualify for an investment tax credit, he or she must demonstrate that the depreciable basis of the property in question exceeds its salvage value to establish that the property is subject to a depreciation allowance, and thus that it qualifies as section 38 property. See supra, at 352-353. Hawkins’ evidence here not only failed to assign a specific salvage value to the artworks, it even failed to indicate whether that salvage value was less than the depreciable basis of the property. The Tax Court, therefore, did not err in finding that" }, { "docid": "17350792", "title": "", "text": "who issued the Tax Court’s opinion. . The Commissioner also issued Hawkins a statutory notice of deficiency for 1974 in the amount of $9,738. The Commissioner reached this determination by limiting the taxpayer’s charitable contribution deduction to $12,500, instead of the $40,000 deduction claimed by Hawkins. The Tax Court held that Hawkins was entitled to deduct $26,500 for his charitable contribution, and thus it reduced the Commissioner’s asserted deficiency for 1974. Neither party appeals from this ruling. . The Commissioner disputes the taxpayer’s claim that Americana’s 1973 loss resulted primarily from its depreciation deduction and lost rent arising from vacancies in apartments owned by the partnership. For purposes of this opinion, however, we will assume that depreciation and lost apartment rent were the exclusive components of the loss incurred by Americana in 1973, as well as Hawkins’ distributive share of that loss. . The tax regulations reflect this theoretical basis for depreciation by stating that “[t]he period for depreciation of an asset shall begin when the asset is placed in service and shall end when the asset is retired from service.” Treas.Reg. § 1.167(a)-10. . Under the assignment of income doctrine, income is taxable only to the person who earns it and a loss is deductible only by the one who sustains it. Williams v. United States, 680 F.2d 382, 384-385 (5th Cir.1982). The doctrine clearly is applicable to the allocation of partnership profits or losses to partners. Id. See United States v. Basye, 410 U.S. 441, 93 S.Ct. 1080, 35 L.Ed.2d 412 (1973). . The Commissioner conceded at trial that Hawkins used the various artworks in question in his trade and business, the practice of law. . An asset’s “useful life” is “the period which [it] may reasonably be expected to be useful to the taxpayer in his trade or business or in the production of his income.” Treas.Reg. § 1.167(a)-l(b). . The “salvage value” of an asset is “the amount (determined at the time of acquisition) which is estimated will be realizable upon [its] sale or other disposition * * * [when it] is to be retired from" }, { "docid": "17350786", "title": "", "text": "useful life. Treas.Reg. § 1.167(a)-l(a). See Dinkins v. Commissioner, 378 F.2d 825, 830 (8th Cir.1967). Thus, in order for property to be depreciable, and hence to qualify as section 38 property, it must have a determinable useful life and a salvage value that is less than its depreciable basis. See Harrah’s Club v. United States, supra, 661 F.2d at 206-208. It is the taxpayer’s burden to demonstrate that he or she has satisfied all the requirements to claim an investment tax credit. See United States v. Kimball Gas Company, 358 F.2d 133, 134 (5th Cir.1966); U.S.Tax Ct.R. 142(a). The Tax Court held that Hawkins failed to meet that burden in this case. It found that although Hawkins proved that his artworks had a depreciable basis, he failed to establish a useful life or salvage value for that property. Because these factual findings are not clearly erroneous, we must affirm them and the Tax Court’s judgment against Hawkins on his investment tax credit claim. The useful life of an asset for depreciation purposes need not be shown with certainty, a reasonable approximation will suffice. Burlington Northern, Inc. v. United States, 676 F.2d 566, 573 (Ct.Cl.1982). Hawkins contends that because he cannot use his artworks after he dies, the Tax Court erred in finding that he did not satisfy the useful life requirement by introducing evidence of his life expectancy based upon standard mortality tables. We cannot agree with Hawkins. The taxpayer introduced no evidence of the inherent useful life of the artworks themselves. Indeed, the IRS has recognized that art objects frequently will not have a determinable useful life — and hence will not be depreciable — because “[w]hile the actual physical condition of the property may influence the value placed on the object, it will not ordinarily limit or determine the useful life.” Rev.RuI. 68-232, 1968-1 Cum.Bull. 79. Moreover, the record supports the Tax Court’s finding that Hawkins introduced no evidence showing that he intended to practice law until he dies. Thus, while it is unlikely that Hawkins will use the artworks beyond his life expectancy, there is no clear" }, { "docid": "10412318", "title": "", "text": "111, 115 (1933); Rule 142, Tax Court Rules of Practice and Procedure. Petitioner contends that the useful lives he employed in computing depreciation deductions for 1968 and 1969 are entirely reasonable and are justified by the facts and circumstances that attended the respective buildings in those years. The precise legal theory upon which petitioner rests his case is somewhat unclear. The thrust of his argument appears to be that although the useful lives as determined by respondent are correct in light of the physical states of the respective buildings, the useful lives thereof should be shortened due to obsolescence. However, both at trial, through the evidence proffered, and on brief, he strongly intimates that respondent underestimated the physical wear and tear on these buildings. Respondent throughout this proceeding has been cognizant of the aforenoted intimations and introduced evidence at trial pertaining to the physical condition of the respective buildings. Hence he has not been prejudiced by the manner in which petitioner has advanced his arguments and our decision will rest both on the physical wear and tear and the obsolescence, if any, sustained by the respective buildings. Useful life is defined in section 1.167(a)-l(b), Income Tax Regs., as \"not necessarily the useful life inherent in the asset but * * * the period over which the asset may reasonably be expected to be useful to the taxpayer in his trade or business or in the production of his income.” This regulation further provides: This period shall be determined by reference to his experience with similar property taking into account present conditions and probable future developments. Some of the factors to be considered in determining this period are (1) wear and tear and decay or decline from natural causes, (2) the normal progress of the art, economic changes, inventions and current developments within the industry and the taxpayer’s trade or business, (3) the climatic and other local conditions peculiar to the taxpayer’s trade or business, and (4) the taxpayer’s policy as to repairs, renewals, and replacements. Salvage value is not a factor for the purpose of determining useful life. If the" }, { "docid": "17350783", "title": "", "text": "final contention with respect to both the depreciation deduction and lost rents in question. He argues that in order to prevent the IRS from receiving an undeserved windfall, he should be permitted to deduct his full pro rata share of the loss incurred by Americana in its 1973 tax year. Specifically, Hawkins reasons that if the Tax Court’s decision is sustained, neither he nor the former partners from whom he purchased his partnership shares will be able to claim that portion of the loss deduction which the Commissioner has disallowed here: he cannot deduct the loss because it occurred before he entered the partnership, and the former partners cannot now claim the deduction to which they would have been entitled because the limitations period has run. Although there is some appeal to this theory, we cannot accept it. Hawkins simply has not proven that the former partners would have been entitled to deduct that portion of Americana’s, loss which occurred before Hawkins purchased their shares. A taxpayer can deduct his or her distributive share of a partnership loss only to the extent of the adjusted basis in his or her partnership interest at the end of the partnership year in which the loss occurred. 26 U.S.C. § 704(d). Hawkins has introduced no evidence showing what — if any — adjusted basis the former partners had in their shares before they sold their interests. To conclude, section 1.706-l(c)(2)(ii) of the Treasury Regulations on Income Tax specifically provide that in the absence of an interim closing of the partnership books upon a transfer of partnership shares, partnership profits or losses must be prorated among the transferor and transferee partners based upon the respective portion of the partnership’s tax year that each was a member of the partnership. The Commissioner utilized precisely this method to allocate to Hawkins only 54/365 of his distributive share of Americana’s 1973 loss. Hawkins has not shown that this allocation was erroneous nor has he suggested a better method of allocation. Accordingly, we affirm the Tax Court’s judgment sustaining the Commissioner’s determination on this issue. B. The Investment" }, { "docid": "8288310", "title": "", "text": "Property,” but this Court must deal with each claim regardless of its possibly inconsistent or alternative nature. Fed.R.Civ.P. 8. As stated above in our discussion of Treas.Reg. § 1.165-2, works of art are generally non-depreciable property. A. R.R. 4530, C.B. 11-2,145 (1923), which was in effect in 1962 at the time of the condemnation of Henriei’s Randolph Street premises provides in pertinent part: It appears that A, being a man of ¡ artistic temperament, has furnished ' his office with furniture, etc., not of a style usually found in business offices; that such furnishings are of a very expensive type and among them are works of art and curios; it is ■claimed that the furnishings are only such as are proper in the office of a man following A’s profession (motion-picture director). While it is not believed that anyone may for tax purposes be limited as to the amount he is to expend for office furniture, it is the opinion of the committee that works of art and curios are not, in A’s ease, properly to be classed as business assets, and that such articles are not subject to such depreciation as is allowable as a deduction from gross income for income tax purposes, the value and desirability of such articles, as a general rule, increasing with age, and inasmuch as the rest of such furniture as may properly be classed as “business assets” has not been shown separate from the cost of the works of art and curios, the Committee recommends that the action of the Income Tax Unit in disallowing depreciation in the amount of _ dollars be sustained until such time as the taxpayer may furnish evidence that depreciation is properly to be allowed. Rev.Rul. 68-232, 1968-1 C.B. 79, which has superseded A.R.R. 4530, provides : A valuable and treasured art piece does not have a determinable useful life. While the actual physical condition of the property may influence the value placed on the object, it will not ordinarily limit or determine the useful life. Accordingly, depreciation of works of art generally is not allowable. A.R.R. 4530," }, { "docid": "17350793", "title": "", "text": "the asset is retired from service.” Treas.Reg. § 1.167(a)-10. . Under the assignment of income doctrine, income is taxable only to the person who earns it and a loss is deductible only by the one who sustains it. Williams v. United States, 680 F.2d 382, 384-385 (5th Cir.1982). The doctrine clearly is applicable to the allocation of partnership profits or losses to partners. Id. See United States v. Basye, 410 U.S. 441, 93 S.Ct. 1080, 35 L.Ed.2d 412 (1973). . The Commissioner conceded at trial that Hawkins used the various artworks in question in his trade and business, the practice of law. . An asset’s “useful life” is “the period which [it] may reasonably be expected to be useful to the taxpayer in his trade or business or in the production of his income.” Treas.Reg. § 1.167(a)-l(b). . The “salvage value” of an asset is “the amount (determined at the time of acquisition) which is estimated will be realizable upon [its] sale or other disposition * * * [when it] is to be retired from service by the taxpayer.” Treas. Reg. § 1.167(a)-l(c). . The Commissioner does not challenge this finding on appeal. . We decline to adopt the Commissioner’s suggestion that works of art are never depreciable because no useful life can be determined in any circumstances. See John R. Thompson Co. v. United States, 338 F.Supp. 770, 778-779 (N.D.Ill.1971), aff’d, 477 F.2d 164, 167 (7th Cir.1973). . The Tax Court, however, clearly erred in making its alternative finding that mortality tables could not be used to predict Hawkins’ life expectancy because there was no record evidence of his age. The record shows that Hawkins was fifty-two years old on July 2, 1978. Thus, in 1973, he was forty-seven years old. The Tax Court could have applied this information to the mortality tables if Hawkins’ theory otherwise would have been acceptable. . Indeed, Hawkins’ expert, Donald Webster, testified that any estimate of salvage value “would be too speculative to be of much * * * value to the Court.”" }, { "docid": "2813922", "title": "", "text": "taxpayer’s clearly established past practices, the Commissioner made a reasonable and realistic assessment of taxpayer’s actual salvage value as determined by its sale prices on the depreciable assets. In summary, salvage value and useful life comprise the depreciation equation under Treasury Regulation § 1.167 (a)-l (a), (b), (c). Since useful life in the taxpayer’s trade or business is agreed to as set by the Commissioner, the only real point at issue here is the proper estimation of salvage value at the time of the acquisition of the depreciable assets. The relatively high salvage value set by the Commissioner appears warranted by reason of Rental’s actual experience in its operation preceding the tax years in question; and is not disproved by the actualities of the tax years-in question. Rental has failed to show that the Tax' Court’s findings are clearly erroneous’ or that incorrect principles of law were applied by the Tax Court. In fact we think the Tax Court properly applied the principles laid down in Massey, Hertz, Fribourg, and S & A Company. The decisions of the Tax Court are affirmed. . Apparently the redetermination of useful life was made by the Commissioner to satisfy the requirements of Treasury Regulation 167(a)-1(c), which permits him to redetermine salvage value based upon facts known at the time of a redetermination of useful life of the depreciable asset. The pertinent part of subsection (c) is as follows: “Salvage. (1) Salvage value is the amount (determined at the time of acquisition) which is estimated will be realizable upon sale or other disposition of an asset when it is no longer useful in the taxpayer’s trade or business or in the production of his income and is to be retired from service by the taxpayer. Salvage value shall not be changed at any time after the determination made at the time of acquisition merely because of changes in price levels. Hoioever, if there is a redetermination of useful life under the rules of paragraph (h) of this section, salvage value may he redetermined based upon facts known at the time such redetermination of useful" }, { "docid": "22562293", "title": "", "text": "any year represents the reduction, during the year, of the capital assets through wear and tear of the plant used. The amount of the allowance for depreciation is the sum which should be set aside for the taxable year, in order that, at the end of the useful life of the plant in the business, the aggregate of the sums set aside will (with the salvage value) suffice to provide an amount equal to the original cost.” See also Detroit Edison Co. v. Commissioner, 319 U. S. 98, 101. In so defining depreciation, tax law has long recognized the accounting concept that depreciation is a process of estimated allocation which does not take account of fluctuations in valuation through market appreciation. It is, of course, undisputed that the Commissioner may require redetermination of useful life or salvage value when it becomes apparent that either of these factors has been miscalculated. The fact of sale of an asset at an amount greater than its depreciated basis may be evidence of such a miscalculation. See Macabe Co., 42 T. C. 1105, 1115 (1964). But the fact alone of sale above adjusted basis does not establish an error in allocation. That is certainly true when, as here, the profit on sale resulted from an unexpected and short-lived, but spectacular, change in the world market. The Commissioner contends that our decisions in Massey Motors, Inc. v. United States, 364 U. S. 92, and Hertz Corp. v. United States, 364 U. S. 122, confirm his theory. To the extent these cases are relevant here at all, they support the taxpayer's position. In Massey and Hertz we held that when a taxpayer, at the time he acquires an asset, reasonably expects he will use it for less than its full physical or economic life, he must, for purposes of computing depreciation, employ .a useful life based on the period of expected use. We recognized in those cases that depreciation is based on estimates as to useful life and salvage value. Since the original estimates here were admittedly reasonable and proved to be accurate, there is no" } ]

[ { "docid": "428263", "title": "", "text": "MANSFIELD, Circuit Judge: A district court is empowered by 28 U.S.C. § 1915(d) to dismiss sua sponte a pro se civil rights complaint as frivolous on its face, Boag v. Boies, 455 F.2d 467 (9th Cir.), cert. denied, 408 U.S. 926, 92 S.Ct. 2509, 33 L.Ed.2d 338 (1972); Urbano v. Sondern, 41 F.R.D. 355 (D.Conn.1966), aff’d, 370 F.2d 13, 14 (2d Cir.), cert. denied, 386 U.S. 1034, 87 S.Ct. 1485, 18 L.Ed.2d 596 (1967); United States ex rel. Masucci v. Follette, 272 F.Supp. 563 (S.D.N.Y.1967). Nevertheless, we have repeatedly cautioned against use of this procedure where the complaint, which must be construed liberally in favor of the pro se plaintiff, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972), alleges facts amounting to a violation of 42 U.S.C. § 1983 (as distinguished from mere conclusions), the adverse party has not been served, and we do not have the benefit of the defendants’ answering papers. Lewis v. New York, 547 F.2d 4 (2d Cir. 1976); Cunningham v. Ward, 546 F.2d 481 (2d Cir. 1976); Burgin v. Henderson, 536 F.2d 501, 502 n.1 (2d Cir. 1976); Frankos v. LaVallee, 535 F.2d 1346, 1347 n.1 (2d Cir. 1976); Mawhinney v. Henderson, 542 F.2d 1, 2 n.1 (2d Cir. 1976). This is a good example of a case where sua sponte dismissal of such a complaint appears to have been premature, calling once again for restraint in the exercise of this power. Jeb S. Fries, a state prisoner incarcerated at the Attica state correctional facility, appeals from an order of the District Court for the Western District of New York entered by Chief Judge John T. Curtin sua sponte dismissing Fries’ action under 42 U.S.C. § 1983 as frivolous on the day it was filed and before any answer, motion or other response from the defendants. For the reasons indicated below, we reverse. The complaint, which must be taken as true for present purposes, alleges that on April 18, 1975, Fries, accompanied by a friend, admitted himself to the emergency room of Lake Shore Intercommunity Hospital in Irving," } ]

[ { "docid": "14323383", "title": "", "text": "(West Supp.1997) (Pub.L.104-134, § 101[ (a) ] [§ 804(a)(2) ], re-designated former subsection (d) as (e)). It is, therefore, impossible to believe that Congress intended to limit the practice of prean- swer “frivolous and malicious” screening to prisoner cases because of the 1996 amendments. Thus, I interpret 28 U.S.C. § 1915(e)(2)(B)(i) to authorize preanswer screening of nonprisoner in forma pauperis complaints for the purpose of deciding whether the complaint is frivolous or malicious. Consequently, assuming the allegation of poverty is true, when this court is confronted with a nonprisoner in forma pau-peris complaint, we are limited, in terms of sua sponte initial review, to deciding whether the nonprisoner in forma pauperis complaint is frivolous or malicious. See Hake v. Clarke, 91 F.3d at 1132 & n. 3 (“We find no support for the district court to have ... conducted an initial review of all pro se complaints under Rule 12(b)(6) before service of process and responsive pleadings,” but noting that initial review for Rule 12(b)(6) purposes was authorized for prisoner cases under 28 U.S.C. § 1915A); Porter v. Fox, 99 F.3d 271, 273 (8th Cir.1996) (“All of our post-Neitzke decisions have uniformly held that a district court may not dismiss prior to service of process unless the complaint is frivolous”); Carney v. Houston, 33 F.3d 893, 895 (8th Cir.1994) (“If the complaint is frivolous or malicious, the district court should dismiss it out of hand. If, however, the complaint is not frivolous or malicious, the district court should grant in forma pauperis status and .order issuance and service of process”). One caveat is necessary. Even after in forma pauperis status has been granted, “ ‘if the Court becomes convinced at any time that the complaint is frivolous or malicious, it may revoke in forma pauperis status and dismiss the complaint under 28 U.S.C. § 1915(d) [now 28 U.S.C. § 1915(e) ].’ ” Carney v. Houston, 33 F.3d at 895 (quoting Gentile v. Missouri Dept. of Corrections, 986 F.2d 214, 217 (8th Cir.1993)). Thus, on its own motion, a district court retains the power to dismiss a nonprisoner in forma pauperis" }, { "docid": "16496417", "title": "", "text": "DAVID R. THOMPSON, Circuit Judge: Joseph Jackson appeals pro se the district court’s judgment dismissing his action for damages against the State of Arizona and two prison officials. We have jurisdic tion under 28 U.S.C. § 1291. We affirm in part, reverse in part and remand. BACKGROUND Jackson’s complaint alleged that prison officials have violated a wide range of his rights. Jackson also filed a petition to proceed in forma pauperis (“IFP”), which was granted. As the district court noted, Jackson’s complaint is “largely unintelligible.” The complaint clearly fails to state a claim under Federal Rule 12(b)(6). Fed.R.Civ.P. 12(b)(6). Declining to order service of process, the district court sua sponte dismissed the complaint with leave to amend and with brief instructions on how to correct the complaint’s numerous defects. The court gave Jackson thirty days to amend his complaint. After Jackson failed to amend the complaint within the thirty-day period, the district court dismissed the action and entered judgment against him. Jackson filed a motion to reconsider and some late amendments for the complaint, but the amendments did not cure the deficiencies identified by the district court. The district court denied the motion to reconsider. DISMISSALS UNDER 28 U.S.C. § 1915(d) “The federal in forma pauperis statute, enacted in 1892 and presently codified as 28 U.S.C. § 1915, is designed to ensure that indigent litigants have meaningful access to the federal courts.” Neitzke v. Williams, — U.S. -, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989) (unanimous decision). An IFP litigant may prosecute a lawsuit without paying filing fees or court costs. Id. As a result, IFP litigants, unlike paying litigants, have little “economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Id. To prevent such abusive litigation, section 1915(d) permits federal courts to dismiss IFP claims “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” Neitzke, 109 S.Ct. at 1831; 28 U.S.C. § 1915(d). “Dismissals on these grounds are often made sua sponte prior to issuance of process, so as to spare prospective defendants the inconvenience and expense of" }, { "docid": "144256", "title": "", "text": "PER CURIAM: While a pretrial detainee incarcerated at the Bexar County Jail in San Antonio, Texas, appellant Montana, together with a fellow inmate, sought permission from the district court to proceed in forma pauperis on a civil rights suit challenging the constitutionality of certain prison conditions. The complaint under 42 U.S.C. § 1983 named the county sheriff as one of the defendants and alleged twelve separate claims: (1) denial of conjugal visits; (2) denial of contact visits; (3) denial of adequate recreational facilities; (4) censorship of mail; (5) prohibition of pornographic publications; (6) unreasonable cell searches; (7) arbitrary punishments; (8) restrictions on use of television; (9) restrictions on use of radio; (10) failure to provide a professional hair stylist; (11) failure to provide adequate amounts of clean wearing apparel, sheets, and towels and to provide pillows, undershorts, and socks; and (12) restrictions on telephone privileges. Injunctive relief on each of these claims was sought. Without discussing the merits of any individual claim, the district court sua sponte dismissed the en tire complaint pursuant to 28 U.S.C. § 1915(d), finding that the action was frivolous and that the defects in the complaint. could not be cured by amendment. The court did not rule on whether Montana qualified for in forma pauperis (“IFP”) status. Montana filed a timely notice of appeal and moved for permission to proceed IFP on appeal. The district court denied such status, certifying that an' appeal would be frivolous, “wholly without merit,” and would not be taken in good faith. Montana seeks review of this ruling, pointing out in his appellate pleadings that during pendency of the suit his claim concerning telephone privileges was remedied by the defendants. He does not indicate whether he is still a pretrial detainee. His appellate pleadings contain an affidavit of poverty which reveals that he is indigent. Pursuant to 28 U.S.C. § 1915(d), a district court has the authority to dismiss a case when an action is frivolous or malicious, and the authority to dismiss under section 1915(d) is broader than dismissal under Federal Rule of Civil Procedure 12. Green v. City" }, { "docid": "23398809", "title": "", "text": "PER CURIAM. Appellant David James Wyatt, a former teacher in the Boston public school system, filed two almost identical complaints in the district court. They concern the reasons for various allegedly adverse actions taken by appellees — the Boston School Committee and school personnel. Ultimately, appellant was terminated from his job. Each complaint contains a rambling, detailed, and often confusing account of the events which led up to appellant’s dismissal. The gist of the complaints is that appellees retaliated against appellant for opposing what he viewed as sexual harassment and for filing a complaint with the Massachusetts Commission Against Discrimination. The district court dismissed the first complaint sua sponte. The order states in full: A mere reading of plaintiffs Complaint for Retaliation evidences the fact that the defendants had good cause to terminate his employment from the Boston Public School System. So as not to unduly prejudice the plaintiff from farther employment in the education field, the Court refrains from citing those portions of plaintiff’s Complaint which give a strong basis for defendants’ actions. This ease is dismissed. In the second action, the court granted in forma pauperis status to appellant and, at the same time, dismissed his complaint as frivolous under 28 U.S.C. § 1915(d). It held that the second complaint had alleged no new facts or legal theories. We assume that the dismissal of the first complaint was based on Fed.R.Civ.P. 12(b)(6). The sticking point is that the district court dismissed the action without notice and without giving appellant a chance to amend his complaint under Fed.R.Civ.P. 15(a) or to respond in any other way to what the court perceived as the complaint’s deficiencies. The general rule is that such dismissals are proper “if process has been issued and served and plaintiff is given notice and an opportunity to respond.” 2A James W. Moore & Jo D. Lucas, Moore’s Federal Practice ¶ 12.07[2. — 6], at 12-99 (2d ed. 1994) (footnote omitted); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 301 (2d ed. 1990) (sua sponte dismissal under Rule 12(b)(6) permitted" }, { "docid": "18553971", "title": "", "text": "1915(d). The Tingler opinion amply sets forth the policy considerations that weigh against pre-answer sua sponte dismissals and the reasons the Tingler protective procedures are necessary. See 716 F.2d at 1111-12. The importance of the Tingler procedures requires us again to invoke our supervisory powers to hold that if a dismissal is to occur sua sponte under the limited exceptions provided by section 1915(d), the trial court must explicitly state that the statute is being invoked and that the complaint is being dismissed as frivolous. In so holding, we recognize that the standards for dismissal as frivolous under section 1915(d) and dismissal under Rule 12(b)(6), Federal Rules of Civil Procedure, are identical in this circuit. See Malone v. Colyer, 710 F.2d 258, 261 (6th Cir.1983). Nevertheless, this court will continue to look closely at early sua sponte dismissals under section 1915(d). In forma pauperis actions are typically filed pro se; pro se complaints are to be “liberally construed” and “must be held to ‘less stringent standards then formal pleadings drafted by lawyers.’ ” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972)). The difficulties that a pro se complainant faces in drafting a sufficient pleading are compounded by the fact that pre-answer sua sponte dismissals will normally forestall any opportunity to amend the complaint. See Tingler, 716 F.2d at 1111. See also Morrison v. Tomano, 755 F.2d 515, 516-17 (6th Cir.1985) (Even where dismissal was without prejudice, and thus not on the merits so that the full panoply of Tingler procedures were not required, trial court erred in not allowing amendment of complaint prior to sua sponte dismissal). By compelling the district court to focus upon and state the precise basis of its dismissal decision, our holding will help ensure that the complaint receives proper consideration and will clarify for future appeals the issue whether the Tingler procedures should or should not have been applied. Had the district court in this case relied explicitly on section 1915(d) we" }, { "docid": "22188834", "title": "", "text": "that members of the Security Threat Group plan their violent activities through inmate-to-inmate correspondence. While in segregation, Curley received a threatening letter from an inmate at another facility, which he turned over to a prison official. Although we do not have a copy of that letter, Curley alleges it revealed that he was being targeted by the Security Threat Group because of his perceived assistance to the authorities in some way. Curley seeks, by this lawsuit, to prohibit all inmate-to-inmate mail except for correspondence between immediate family members or involving legal issues. His complaint asks for a declaratory judgment and an injunction that (among other things) would require Defendants to “investigate” and ultimately implement more restrictive correspondence regulations. He does not seek monetary damages. The district court granted Curley’s motion for leave to proceed in forma pauperis. The court, acting sua sponte, then dismissed the complaint with prejudice for failure to state a claim upon which relief could be granted under both 28 U.S.C. § 1915(e)(2) and Federal Rule of Civil Procedure 12(b)(6). On appeal, Curley challenges both the district court’s dismissal decision on the merits and the constitutionality of the court’s procedure in sua sponte dismissal. We address the merits first because we need to address the constitutional procedural challenge only if we affirm on the merits the dismissal under § 1915(e)(2) and Rule 12(b)(6). DISCUSSION The district court had jurisdiction under 28 U.S.C. § 1381. We have jurisdiction under 28 U.S.C. § 1291. I. Failure to state a claim We review de novo the district court’s decision to dismiss a complaint under § 1915(e)(2) for failure to state a claim. See Perkins v. Kansas Dep’t of Corrections, 165 F.3d 803, 806 (10th Cir.1999). We must accept the allegations of the complaint as true and view them in the light most favorable to the plaintiff. See id. We further construe a pro se complaint liberally. See id. “Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it" }, { "docid": "14244053", "title": "", "text": "simultaneously with its filing, defendants, the State of New York, the state Commissioner of Correctional Services, and the Superintendents of Clinton and Bayview, were never served with copies of the complaint or summons. I. We have criticized sua sponte dismissals of pro se complaints in several recent cases emanating in the Northern District. Great circumspection is required before terminating such actions, particularly in their embryonic stages. It is prudent for judges to avoid an inquisitorial role, and not search out issues more appropriately left to a motion by the opposing party. If defendants had moved to dismiss for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Lewis would have received notice of the challenge to the sufficiency of his complaint. He would have had an opportunity to respond by seeking leave to amend, or setting forth arguments supporting the validity of his claim. Because Judge Port dismissed sua sponte, however, Lewis did not receive notice of the proposed disposition and was unable to respond. In the oft-cited case of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), the Supreme Court held that a trial court cannot dismiss a complaint for failure to state a claim until it has “assumed jurisdiction over the controversy.” In this case, Judge Port explicitly dismissed the complaint because “no federal or constitutional claim is presented”. Yet his ruling was made before any adverse party was joined in the litigation and rested solely on the face of Lewis’ complaint. It would appear, therefore, that the Court had not assumed jurisdiction within the meaning of Bell v. Hood, supra. Thus, dismissal of the action was premature. II. Untimely dismissal may prove wasteful of the court’s limited resources rather than expeditious, for it often leads to a shuttling of the lawsuit between the district and appellate courts. The undesirable consequences of premature dismissal are amply illustrated by the awkward posture this case presents on appeal. Lewis, having had his action dismissed for failure to state a claim, asks us to rule on the sufficiency of" }, { "docid": "14244052", "title": "", "text": "gift, and all the wages Lewis earned were applied against the alleged debt. By January 26, 1976, when Lewis sought leave to file his complaint in forma pauperis, approximately $70.00 had been taken from his commissary account. During this period Lewis was deprived of supplemental food and tobacco, and claims this loss caused him serious physical and emotional distress. Lewis’ three-page pro se complaint, written in longhand, recounted the tale just told. Although perhaps misleadingly denominated a “Complaint for Conversion” the document clearly stated that “jurisdiction” was based on 42 U.S.C. § 1983. Lewis accompanied the complaint with an affidavit and motion to proceed in forma pauper-is. Judge Port, in a memorandum and order dated January 29, 1976, directed that leave to proceed in forma pauperis be granted so the complaint could be filed without payment of the requisite fee. He then ordered the action “denied and dismissed”, holding that the complaint alleged “if anything” the tort of conversion, and concluding that “no federal or constitutional claim is presented”. Since the action was dismissed almost simultaneously with its filing, defendants, the State of New York, the state Commissioner of Correctional Services, and the Superintendents of Clinton and Bayview, were never served with copies of the complaint or summons. I. We have criticized sua sponte dismissals of pro se complaints in several recent cases emanating in the Northern District. Great circumspection is required before terminating such actions, particularly in their embryonic stages. It is prudent for judges to avoid an inquisitorial role, and not search out issues more appropriately left to a motion by the opposing party. If defendants had moved to dismiss for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Lewis would have received notice of the challenge to the sufficiency of his complaint. He would have had an opportunity to respond by seeking leave to amend, or setting forth arguments supporting the validity of his claim. Because Judge Port dismissed sua sponte, however, Lewis did not receive notice of the proposed disposition and was unable to respond. In the oft-cited" }, { "docid": "4947550", "title": "", "text": "specific term “frivolous” refers to an action in which the plaintiff’s realistic chances of ultimate success are slight, [citations omitted.] This is not to say that suits should not be allowed filed or be dismissed abruptly or that a court should readily assume frivolity because it is pris oner filed. To the contrary, it is incumbent upon the court to develop the case and to sift the claims and known facts thoroughly until completely satisfied either of its merits or lack of same. In the former instance, the case should proceed with the assistance of the court. However, upon reasonable effort where the contrary appears, it should be dismissed. Here, the Court has endeavored to apply this leavening process and what has surfaced is found wanting. [Emphasis supplied]. The preceding language illustrates the dilemma of the federal courts in weeding out frivolous prisoner litigation, whether such litigation be civil rights cases or actions by state or federal prisoners seeking collateral review of their convictions. See also Lovell v. Arnold, 391 F.Supp. 1047 (M.D.Pa.1975) [state inmate’s in forma pauperis habeas corpus petition dismissed as frivolous pursuant to 28 U.S.C. § 1915(d)], Although Chief Judge Smith and other judges have found 28 U.S.C. § 1915(d) to be an effective filter for disposing of frivolous in forma pauperis litigation, in the case at bar, petitioner did not seek leave to proceed in forma pauperis. Accordingly, Section 1915(d) cannot apply here. There is, however, well-established authority that this court has broad, inherent power to sua sponte dismiss an action, or part of an action, which is frivolous, sham, vexatious, or brought in bad faith. 1 Moore’s Federal Practice ¶ 0.60[6] at 635-36. See also Brown v. District Unemployment Compensation Bd., 411 F.Supp. 1001 (D.D.C.1975) (district court has inherent power to control the judicial process and dismiss frivolous or harassing action sua sponte). This broad, inherent power does not depend on statute, and it is not limited or impaired by Rule 12(b). 1 Moore’s, supra at 635-36. The power “may be invoked at any time during the progress of the action.” Id. at 636. In" }, { "docid": "4947551", "title": "", "text": "in forma pauperis habeas corpus petition dismissed as frivolous pursuant to 28 U.S.C. § 1915(d)], Although Chief Judge Smith and other judges have found 28 U.S.C. § 1915(d) to be an effective filter for disposing of frivolous in forma pauperis litigation, in the case at bar, petitioner did not seek leave to proceed in forma pauperis. Accordingly, Section 1915(d) cannot apply here. There is, however, well-established authority that this court has broad, inherent power to sua sponte dismiss an action, or part of an action, which is frivolous, sham, vexatious, or brought in bad faith. 1 Moore’s Federal Practice ¶ 0.60[6] at 635-36. See also Brown v. District Unemployment Compensation Bd., 411 F.Supp. 1001 (D.D.C.1975) (district court has inherent power to control the judicial process and dismiss frivolous or harassing action sua sponte). This broad, inherent power does not depend on statute, and it is not limited or impaired by Rule 12(b). 1 Moore’s, supra at 635-36. The power “may be invoked at any time during the progress of the action.” Id. at 636. In addition, where an action is dismissed sua sponte as being frivolous, notice of the proposed dismissal and an opportunity to respond thereto is not required. See, e. g., Harkins v. Eldredge, 505 F.2d 802, 804 (6th Cir. 1974). See also Brown v. District Unemployment Compensation Bd., supra at 1002, where, upon reading the complaint, the district judge sua sponte ordered “immediate dismissal.” The mere fact that this is a Section 2255 proceeding should not eclipse the court’s broad, inherent power. Of course, this is not to say that prisoners should be prohibited from filing Section 2255 motions or that such motions should be assumed to be frivolous and therefore dismissed. As Chief Judge Smith has stated, “[t]o the contrary, it is incumbent upon the court to develop the case and to sift the claims and known facts thoroughly until completely satisfied either of its merits or lack of same.” Jones v. Bales, supra at 464. Mindful of these guidelines and having considered all that is involved in this case, the court, for the reasons hereinafter" }, { "docid": "17190726", "title": "", "text": "defendant's answer, the district court ruled that by failing to make requisite factual allegations concerning the time and place of any alleged constitutional violations, and failing to allege that defendant Kelly had any personal knowledge or involvement with the alleged constitutional violations, the complaint failed to state a claim upon which relief may be granted. On this basis, the district court sua sponte dismissed the complaint, without prejudice, as frivolous within the meaning of 28 U.S.C. § 1915(d). Upon plaintiff’s failure to file an amended complaint, the district court dismissed the action. A district court may sua sponte dismiss a case filed in forma pauperis “if satisfied that the action is frivolous or malicious.” 28 U.S.C. § 1915(d). In Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), the Supreme Court explained the two instances in which a district court may dismiss a complaint pursuant to section 1915(d). First, it may dismiss when the “factual contentions are clearly baseless,” such as when allegations are the product of delusion or fantasy. Id. 109 S.Ct. at 1833. Or, second, it may dismiss when the claim is “based on an indisputably meritless legal theory.” Id. Neitzke stressed that the showing a plaintiff must make to establish that a complaint is not “based on an indisputably mer-itless legal theory” is not the same as one necessary to withstand a motion to dismiss for failure to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6). See id. at 1832-33. The district court’s role in ensuring that an in forma pauperis complaint is non-frivolous is meant to replace the role played by court costs and filing fees in deterring frivolous complaints. See id. at 1833. Accordingly, a district court should look with a far more forgiving eye in examining whether a complaint rests on a merit-less legal theory for purposes of section 1915(d) than it does in testing the complaint against a Rule 12(b)(6) motion. By way of illustration, the Court noted that claims in which the defendants are clearly immune from suit or claims" }, { "docid": "22666902", "title": "", "text": "granted the defendants’ motion for summary judgment as to the remaining claims; and denied Lopez’s cross- motion for summary judgment, was entered September 22,1997. Judgment II From this history it is clear that § 1915(e)(2) played no part in dismissal of Lopez’s due process claim. The parties, the magistrate judge, and the district court all understood this dismissal to be a Rule 12(b)(6) dismissal. As the majority points out, our decisions for years have held that in this setting the pro se litigant must be given notice of the deficiencies in his complaint and “an opportunity to amend the complaint to overcome the deficiency unless it clearly appears from the complaint that the deficiency cannot be overcome by amendment.” Noll, 809 F.2d at 1448. Because the deficiency in Lopez’s complaint (failure to name any defendant connected to his placement with a dangerous inmate) seems curable, leave to amend should have been granted under long-standing principles. However, I do not believe this appeal can, or should, be used to decide whether the same rule applies to dismissals under § 1915(e)(2). While § 1915(e)(2) now makes failure to state a claim a basis for sua sponte dismissals of a “case” brought pro se, in forma pauperis, § 1915(e)(2) was not invoked in this case and Lopez’s claim was not dismissed sua sponte under § 1915(e)(2). Cf., e.g., Gomez v. USAA Federal Savings Bank, 171 F.3d 794 (2d Cir.1999) (reviewing judgment which dismissed pro se, in forma pauperis complaint sua sponte without prejudice pursuant to § 1915(e)(2) and holding that dismissal of the case for failure to state a claim would be improper without leave to amend); Perkins v. Kansas Dept. of Corrections, 165 F.3d 803 (10th Cir.1999) (reviewing sua sponte dismissal of action pursuant to 1915(e)(2)(B)(ii) before complaint was served and holding that district court prematurely dismissed certain of plaintiffs claims); Anyanwutaku v. Moore, 151 F.3d 1053 (D.C.Cir.1998) (reviewing sua sponte dismissal of complaint deemed to have been under § 1915(e) and holding that allegations were sufficient to proceed beyond the sua sponte dismissal stage); Christiansen v. Clarke, 147 F.3d 655 (8th" }, { "docid": "11109069", "title": "", "text": "PER CURIAM: Plaintiff Herbert Thomas, a New York State prisoner, appeals from a final judgment of the United States District Court for the Southern District of New York, Charles L. Brieant, Chief Judge, dismissing his pro se complaint which contended that his rights under the First Amendment to the Constitution were violated by a policy promulgated by defendant Charles Scully, Superintendent of Green Haven Correctional Facility, prohibiting inmates from possessing noncommercial nude photographs. Thomas complained that prison officials, pursuant to that policy, confiscated nude photographs mailed to him by his girlfriend and returned them to the sender. The district court, sua sponte, dismissed the complaint pursuant to Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 1915(d) (1988) on the ground that the regulation was rationally related to the goal of maintaining prison security, and thus Thomas’s claim did not rise to the level of a constitutional violation. On appeal, now represented by appointed counsel, Thomas contends that the court erred (1) in ruling on the complaint without giving him an opportunity to be heard, and (2) in concluding that the challenged regulation was permissible. For the reasons below, we agree with the procedural contention and remand for further consideration of the merits. Though the district court has the power to dismiss a complaint sua sponte for failure to state a claim on which relief can be granted, it may not properly do so without giving the plaintiff an opportunity to be heard. See, e.g., Perez v. Ortiz, 849 F.2d 793, 797 (2d Cir.1988); 5A C. Wright & A. Miller, Federal Practice and Procedure § 1357, at 301 (1990) (“court on its own initiative may note the inadequacy of the complaint and dismiss it for failure to state a claim as long as the procedure employed is fair”). Section 1915(d) gives the court the power to dismiss a pro se complaint sua sponte if the complaint is frivolous. A complaint may fail to state a claim on which relief may be granted without being frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989). There is no suggestion" }, { "docid": "22476220", "title": "", "text": "that the remaining individual defendants be served with the complaint. The individual defendants then filed answers to the complaint but did not file motions to dismiss under Fed.R.Civ.P. 12(b)(6). Plaintiff subsequently filed motions for “records and court order,” for “writ of seizure of personal and legal property,” for appointment of counsel, for permission to amend the complaint, and for default judgment. The district court denied all of plaintiffs motions on June 14, 1989. Also on June 14, 1989, the district court sua sponte dismissed the rest of plaintiffs complaint as frivolous, again pursuant to 28 U.S.C. § 1915(d). The district court did so because it concluded that plaintiff was seeking to litigate the same claims raised in another, class action, lawsuit filed against various Lehigh County prison officials, Vazquez v. Carver, E.D. Pa.Civ. No. 86-3020. Plaintiff timely filed a notice of appeal, and we granted leave to proceed in forma pauperis on appeal in order to determine the propriety of the § 1915(d) dismissal in this case. Our review of a district court decision dismissing a complaint as frivolous is plenary. Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir.1989). II. Under 28 U.S.C. § 1915(d), a district court is authorized to dismiss as frivolous claims based on an indisputably meritless legal theory and claims whose factual contentions are clearly baseless. Neitzke v. Williams, — U.S. —, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). “Within the former category fall those cases in which either it is readily apparent that the plaintiffs complaint lacks an arguable basis in law or that the defendants are clearly entitled to immunity from suit; within the latter are those cases describing scenarios clearly removed from reality.” Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11th Cir.1990). A complaint that arguably states a claim should go forward. Neitzke identified two goals underlying the district court’s power to grant in forma pauperis status and dismiss under 28 U.S.C. § 1915(d): (1) insuring that all litigants receive equal consideration and the protection of the Federal Rules of Civil Procedure, and (2) weeding out claims that lack an arguable" }, { "docid": "23512609", "title": "", "text": "OPINION OF THE COURT BECKER, Circuit Judge. This is an appeal from the sua sponte Fed.R.Civ.P. 12(b)(6) dismissal by the district court of a pro se civil rights complaint after the grant to the plaintiff of leave to proceed in forma pauperis, 28 U.S.C. § 1915(a), but before service of the complaint upon the defendants. The appeal requires us to decide whether the district court properly dismissed the complaint under these circumstances. We conclude that it did not. We will therefore vacate the district court’s order and remand for further proceedings. I. Plaintiff, Dale Oatess, is an inmate at the State Correctional Institution at Cresson, Pennsylvania. On June 12, 1989, he submitted his civil rights complaint and motion to proceed in forma pauperis to the District Court for the Western District of Pennsylvania. Oatess’ complaint alleged that defendants had conspired to ensure the dismissal of a civil case which he had filed in the Court of Common Pleas of Erie County, Pennsylvania. The defendants in the federal suit were two state court judges, a prosecuting attorney, several court administrators, and several private attorneys. The district court referred the case to a United States Magistrate under 28 U.S.C. § 636(b). After granting plaintiff leave to proceed in forma 'pauperis, the magistrate filed a report, recommending dismissal of the complaint for failure to state a claim upon which relief could be granted. The magistrate notified Oatess, as required under 28 U.S.C. § 636(b)(1), that he had ten days in which to file exceptions to the report. Oatess filed timely exceptions, which were reviewed by the magistrate and found to be without merit. The district court adopted the report and recommendation, and dismissed the complaint, not as legally frivolous under 28 U.S.C. § 1915(d), but for failure to state a claim upon which relief could be granted, under Rule 12(b)(6). There is no indication in the record that summonses were ever issued to plaintiff or complaints served upon defendants. This appeal followed. II. A complaint that is filed informa pauperis under 28 U.S.C. § 1915(a) is subject to dismissal by the district court" }, { "docid": "23512623", "title": "", "text": "would then fail to serve the summons and complaint. If the plaintiff were not aware, he would serve the summons and complaint, and the defendant would appear at the Courthouse to file an answer only to learn that the suit against him had been dismissed, an outcome with which it is unlikely he would be disappointed. I also cannot agree with the majority that Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), precludes Rule 12(b)(6) dismissal of an in for-ma pauperis complaint before service of process. As I read Neitzke, it holds only that 28 U.S.C. § 1915(d) and Fed.R.Civ.P. 12(b)(6) are distinct, were enacted for different purposes, and that a complaint which fails to state a claim upon which relief can be granted, while dismissable under Rule 12(b)(6), is not automatically frivolous for purposes of 28 U.S.C. § 1915(d). Were we dealing in some way with a local court rule or policy that allowed only in forma pauperis complaints to be dismissed prior to service of process, I would agree that Neitzke might be implicated. However, there is no such policy or local rule at issue here, and, indeed, the majority has apparently held that all complaints, in forma pauperis or not, may not be dismissed prior to service of process. Nor can I agree with the majority that our tradition of adversarial proceedings and concerns of judicial economy dictate a conclusion prohibiting pre-service of process dismissals. While it certainly is true that allowing the district court judge to sua sponte dismiss makes the proceeding less adversarial as to the plaintiff vis-a-vis the defendant, and may even create a perception that the judge has abandoned his role of neutral arbiter, the same is true when a judge sua sponte dismisses suits as frivolous under 28 U.S.C. § 1915(d), or indeed even when he sua sponte dismisses a case for failure to state a claim upon which relief can be granted after service of process. I also cannot agree with the majority's assertion that permitting sua sponte, pre-service of process, dismissals would impact detrimentally on" }, { "docid": "23398810", "title": "", "text": "ease is dismissed. In the second action, the court granted in forma pauperis status to appellant and, at the same time, dismissed his complaint as frivolous under 28 U.S.C. § 1915(d). It held that the second complaint had alleged no new facts or legal theories. We assume that the dismissal of the first complaint was based on Fed.R.Civ.P. 12(b)(6). The sticking point is that the district court dismissed the action without notice and without giving appellant a chance to amend his complaint under Fed.R.Civ.P. 15(a) or to respond in any other way to what the court perceived as the complaint’s deficiencies. The general rule is that such dismissals are proper “if process has been issued and served and plaintiff is given notice and an opportunity to respond.” 2A James W. Moore & Jo D. Lucas, Moore’s Federal Practice ¶ 12.07[2. — 6], at 12-99 (2d ed. 1994) (footnote omitted); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 301 (2d ed. 1990) (sua sponte dismissal under Rule 12(b)(6) permitted “as long as the procedure employed is fair”). The Supreme Court has said that “[ujnder Rule 12(b)(6), a plaintiff with an arguable claim is ordinarily accorded notice of a pending motion to dismiss for failure to state a claim and an opportunity to amend the complaint before the motion is ruled upon.” See Neitzke v. Williams, 490 U.S. 319, 329, 109 S.Ct. 1827, 1834, 104 L.Ed.2d 338 (1989) (footnote ommitted). This court also has stated that a district court may, in appropriate circumstances, note the inadequacy of the complaint and, on its own initiative, dismiss the complaint. Yet a court may not do so without at least giving plaintiffs notice of the proposed action and affording them an opportunity to address the issue. Literature, Inc. v. Quinn, 482 F.2d 372, 374 (1st Cir.1973) (citations omitted). See also Street v. Fair, 918 F.2d 269, 272 (1st Cir.1990) (per curiam); Ricketts v. Midwest Nat’l Bank, 874 F.2d 1177, 1185 (7th Cir.1989) (where a sua sponte dismissal is contemplated by a district court, that court must first give" }, { "docid": "18553970", "title": "", "text": "an overlay of the Tingler procedures would defeat the very purpose of section 1915(d) dismissals. Plaintiff in this case, Rochester Harris, was incarcerated at the State Prison of Southern Michigan. On May 4, 1984, he filed a pro se complaint against Perry Johnson, Director of the Michigan Department of Corrections, alleging racial discrimination by prison officials in hindering Harris’s efforts to market commercially an electronic device he allegedly invented while in prison. Harris made no factual allegations indicating specific acts and no allegation of personal involvement of the only named defendant, Johnson. On May 16, before service upon the defendant and without prior notice, the court granted Harris’s motion to proceed in forma pauperis and then filed an opinion that dismissed the complaint stating that “it appears beyond doubt that plaintiff’s allegations preclude him from proving any set of facts which would entitle him to relief from the defendant____” Memo. op. at 5 (May 16, 1984). The court did not state that the complaint was frivolous or that the dismissal was entered pursuant to section 1915(d). The Tingler opinion amply sets forth the policy considerations that weigh against pre-answer sua sponte dismissals and the reasons the Tingler protective procedures are necessary. See 716 F.2d at 1111-12. The importance of the Tingler procedures requires us again to invoke our supervisory powers to hold that if a dismissal is to occur sua sponte under the limited exceptions provided by section 1915(d), the trial court must explicitly state that the statute is being invoked and that the complaint is being dismissed as frivolous. In so holding, we recognize that the standards for dismissal as frivolous under section 1915(d) and dismissal under Rule 12(b)(6), Federal Rules of Civil Procedure, are identical in this circuit. See Malone v. Colyer, 710 F.2d 258, 261 (6th Cir.1983). Nevertheless, this court will continue to look closely at early sua sponte dismissals under section 1915(d). In forma pauperis actions are typically filed pro se; pro se complaints are to be “liberally construed” and “must be held to ‘less stringent standards then formal pleadings drafted by lawyers.’ ” Estelle v." }, { "docid": "23369355", "title": "", "text": "foregoing reasons, the district court’s order dismissing sua sponte Williams’ pro se complaint and denying him leave to proceed in forma pauperis is affirmed in part and reversed in part. This case is remanded to the district court for further proceedings consistent with this opinion. . The statute provides, in relevant part, that \"[t]he court ... may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” 28 U.S.C. § 1915(d). . The district court's denial of Williams’ motion to proceed in forma pauperis was consistent with the procedure outlined in Wartman v. Branch 7, Civil Division, County Court, 510 F.2d 130, 132-34 (7th Cir.1975). In Wartman, this court stated that a district court may deny a motion to proceed in forma pauperis if it finds that the complaint is frivolous. Other circuits, however, grant or deny in forma pauperis status based on the plaintiffs financial resources alone and then independently determine whether to dismiss the complaint as frivolous. See, e.g., Franklin v. Murphy, 745 F.2d 1221, 1226-27 n. 5 (9th Cir.1984); Boyce v. Alizaduh, 595 F.2d 948, 950-51 (4th Cir.1979). . 28 U.S.C. § 1915(a) provides: Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs of security therefore, by a person who makes affidavit that he is unable to pay such costs or give security therefore. Such affidavit shall state the nature of the action, defense or appeal and affi-ant’s belief that he is entitled to redress. .Rule 12(b)(6) provides in pertinent part: Every defense, in law or fact, ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (6) failure to state a claim upon which relief can be granted Fed.R.Civ.P. 12(b)(6). . There are, however, situations where a complaint both fails to state a claim upon which relief can be granted pursuant to 12(b)(6) and is" }, { "docid": "23369346", "title": "", "text": "F.2d at 1279 (quoting Sills v. Bureau of Prisons, 761 F.2d 792, 794 (D.C. Cir.1985)). A frivolous complaint is one in which “the petitioner can make no rational argument in law or facts to support his [or her] claim for relief.” Jones, 777 F.2d at 1279-80 (quoting Corgain v. Miller, 708 F.2d 1241, 1247 (7th Cir.1983)); see also Brandon, 734 F.2d at 59 (a frivolous pro se complaint is one where “there is indisputedly absent any factual and legal basis for the asserted wrong.”). B. The district court dismissed Williams’ complaint because it failed to state a claim upon which relief could be granted; the court thereby equated the dismissal standards of Rule 12(b)(6) and § 1915(d). This case therefore raises the question of whether our established test for the sua sponte dismissal of frivolous pro se, in forma pauperis complaints under 28 U.S.C. § 1915(d) differs in any re spect from the test for the dismissal of a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b)(6) permits the dismissal of a complaint for failure to state a claim upon which relief can be granted only when “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, 42, 78 S.Ct. 99, 100, 2 L.Ed.2d 80 (1957); Benson v. Cady, 761 F.2d 335, 338 (7th Cir.1985). Under § 1915(d), in contrast, an in forma pauper-is, pro se complaint can be dismissed sua sponte by the district court only if the petitioner cannot make any rational argument in law or fact which would entitle him or her to relief. Thus, the § 1915(d) test is less stringent than the Rule 12(b)(6) dismissal standard. The fact that a pro se, in forma pauperis complaint fails to state a claim upon which relief could be granted under Rule 12(b)(6) does not, in and.of itself, warrant the sua sponte dismissal of the case as frivolous under § 1915(d). In the limited circumstance of pro se, in for-ma pauperis litigation," } ]

[ { "docid": "14050666", "title": "", "text": "(1) it confers jurisdiction upon the Court of Federal Claims over the specified categories of actions brought against the United States, and (2) it waives the Government’s sovereign immunity for those actions. See U.S. v. Mitchell, 463 U.S. 206, 212-18, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (Mitchell II); United States v. Testan, 424 U.S. 392, 397-98, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). The causes to which the Act applies are claims for money damages against the United States “founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act itself does not create a substantive cause of action; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages. Mitchell II, 463 U.S. at 216, 103 S.Ct. 2961; Testan, 424 U.S. at 398, 96 S.Ct. 948. In the parlance of Tucker Act cases, that source must be “money-mandating.” See Mitchell II, 463 U.S. at 217, 103 S.Ct. 2961; Testan, 424 U.S. at 398, 96 S.Ct. 948. Under the existing precedent of this court, the issue of whether a source is money-mandating is addressed in a two-step process. See Gollehon Farming v. United States, 207 F.3d 1373, 1378-80 (Fed.Cir.2000) (citing Banks v. Garrett, 901 F.2d 1084, 1087-88 (Fed.Cir.1990)). As a first step, and for purposes of satisfying the jurisdictional requirement that a money-mandating statute or regulation is before the court, the plaintiff need only make a non-frivolous allegation that the statute or regulation may be interpreted as money-mandating. The non-frivolous allegation satisfies the jurisdictional requirement. If, as a second step, the issue of jurisdiction is later pressed and it is subsequently decided that the statute or regulation is not money-mandating, then the case is dismissed for failure to state a claim upon which relief can be granted. Gollehon, 207 F.3d at 1379." } ]

[ { "docid": "19044393", "title": "", "text": "determining whether jurisdiction is proper. B. Subject Matter Jurisdiction Whether a court possesses jurisdiction is a threshold matter in every case. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “Subject-matter jurisdiction may be challenged at any time by the parties or by the court sua sponte.” Folden, 379 F.3d at 1354; see also Arbaugh v. Y & H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Plaintiff alleges that he is entitled to back pay under the Military Pay Act, and that this Court has jurisdiction over his claim pursuant to the Tucker Act, 28 U.S.C. § 1491 (2006). Compl. ¶ 2. The Tucker Act grants this Court jurisdiction over monetary actions “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” § 1491(a)(1). The Tucker Act is only a jurisdictional statute and does not create any independent substantive rights enforceable against the United States for money damages. See, e.g., United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (“[T]he [Tucker] Act merely confers jurisdiction upon [this Court] whenever the substantive right exists”). The main issues in this case are the nature of Plaintiffs claim and under which statute he is requesting relief. According to the Federal Circuit, a service member who is injured in the line of duty may claim entitlement to two different types of pay: “incapacitation pay — active duty pay during a period of physical incapacitation — and also ... disability payments, including disability retirement, if the disability is permanent.” Barnick v. United States, 591 F.3d 1372, 1374-1375 (Fed.Cir.2010). Plaintiff characterizes his claim as one for back pay for improperly denied incapacitation pay. A claim for back pay arises under the Military Pay Act, 37" }, { "docid": "20172333", "title": "", "text": "amended complaint on the grounds that the Court lacks subject matter jurisdiction, it abandoned that argument and conceded subject matter jurisdiction in its reply in support of the motion. Def.’s Reply to Pl.’s Opp. to Def.’s Mot. to Dismiss (“Def.’s Reply”) [Dkt. #20] at 1-2. Even so, an absence of subject matter jurisdiction may not be waived, and a court is obliged to address it sua sponte if necessary. Doe by Fein v. District of Columbia, 93 F.3d 861, 871 (D.C.Cir.1996); see Morris v. Wash. Metro. Area Transit Auth., 702 F.2d 1037, 1040 (D.C.Cir.1983) (matters casting doubt on federal subject matter jurisdiction may be considered on a court’s own motion). This Court agrees that it has subject matter jurisdiction to hear at least Daniels’s claim for back pay. The Tucker Act grants jurisdiction to the District Courts of the United States, concurrent with the Court of Federal Claims, to hear any “civil action or claim against the United States, not ex ceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort,” with some exceptions that are not relevant to this case. 28 U.S.C. § 1346(a)(2). This provision is commonly referred to as the “Little Tucker Act.” See Remmie v. Mabus, 898 F.Supp.2d 108, 116 (D.D.C.2012), citing Randall v. United States, 95 F.3d 339, 346 (4th Cir.1996). Since the Tucker Act is solely a jurisdictional statute, “a plaintiff must identify a separate source of substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005). Courts commonly refer to sources of law that satisfy this requirement as “money-mandating.” Id. “A statute is money-mandating if it ‘can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.’ ” Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed.Cir.2008), quoting United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961; 77 L.Ed.2d 580 (1983). A statute" }, { "docid": "4597454", "title": "", "text": "RCFC 12(h)(3). The Tucker Act establishes and limits the jurisdiction of the Court of Federal Claims. 28 U.S.C. § 1491 (2006). The Tucker Act provides that this court has jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act provides the waiver of sovereign immunity necessary for a plaintiff to sue the United States for money damages. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). However, the Tucker Act does not confer any substantive rights upon a plaintiff. United States v. Testan, 424 U.S. 392, 398-401, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A plaintiff must establish an independent substantive right to money damages from the United States, that is, a money-mandating source within a contract, regulation, statute or constitutional provision itself, in order for the case to proceed. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008). B. Transfer for Lack of Subject Matter Jurisdiction Under 28 U.S.C. § 1631, a federal court may transfer a case to another federal court when (1) the transferring court lacks subject matter jurisdiction; (2) the case could have been brought in the transferee court at the time it was filed; and (3) such a transfer is in the interest of justice. See Rodriguez v. United States, 862 F.2d 1558, 1559-60 (Fed.Cir.1988) (citing Town of North Bonneville, Wash. v. U.S. District Court, 732 F.2d 747, 750 (9th Cir.1984)). III. Discussion For the following reasons, all of plaintiffs claims are dismissed for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1). Additionally, the court finds that transfer of plaintiffs ease to another federal court is inappropriate. A Denial of Social Security Benefits Plaintiff attempts to invoke the court’s jurisdiction under the Tucker Act to appeal the SSA’s decision denying him Social Security benefits while he is incarcerated. See" }, { "docid": "19065736", "title": "", "text": "L.Ed.2d 40 (2003) (White Mountain Apache) (“Jurisdiction over any suit against the Government requires a clear statement from the United States waiving sovereign immunity, together with a claim falling within the terms of the waiver.”) (citations omitted). Plaintiffs assert that this court has jurisdiction over both of their claims under the Tucker Act, which provides in relevant part that the United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort. 28 U.S.C. § 1491(a)(1) (2006). The Federal Circuit has explained that the Tucker Act “does two things: (1) it confers jurisdiction upon the Court of Federal Claims over the specified categories of actions brought against the United States, and (2) it waives the Government’s sovereign immunity for those actions.” Fisher v. United, States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc in relevant part). However, the statute “does not create a substantive cause of action; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.” Id. “Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act.” United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). On the contrary, “the claimant must demonstrate that the source of substantive law he relies upon ‘can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.’ ” Id. at 216-17, 103 S.Ct. 2961 (quoting United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)) (footnote and quotations omitted). If the asserted legal basis of a claim does not mandate the payment of money by the government, the court must dismiss the action because “the absence of a money-mandating source [is] fatal" }, { "docid": "15234215", "title": "", "text": "Plaintiffs “cause” here does not constitute such an extraordinary circumstance and the court accordingly DENIES Plaintiffs motion. IV. The Court Lacks Subject Matter Jurisdiction Over Plaintiffs Complaint Whether a court possesses jurisdiction is a threshold matter in every case. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “Subject-matter jurisdiction may be challenged at any time by the parties or by the court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir.2004); see also Arbaugh v. Y & H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed.Cir. 1998); Booth v. United States, 990 F.2d 617, 620 (Fed.Cir.1993). While pro se parties are held to “less stringent standards,” Haines, 404 U.S. at 520, 92 S.Ct. 594, “a court may not similarly take a liberal view of ... jurisdictional requirements] and set a different rule for pro se litigants only.” Kelley, 812 F.2d at 1380 (emphasis added). This court’s jurisdiction is prescribed by the Tucker Act, 28 U.S.C. § 1491 (2006). Under the Tucker Act, this court’s jurisdiction is limited to monetary claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” Id. § 1491(a)(1) (emphasis added). The Tucker Act is only a jurisdictional statute and does not create any independent substantive rights enforceable against the United States for money damages. See, e.g., United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (“[T]he [Tucker] Act merely confers jurisdiction upon [this Court] whenever the substantive right exists.”). In other words, not every claim involving the United States Constitution or an Act of Congress is recognizable under the Tucker Act. Rather, a plaintiffs claim must be for money damages based" }, { "docid": "4597453", "title": "", "text": "v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). The plaintiff bears the burden of establishing the court’s jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (citing Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir.1969)). The court must accept as true all undisputed allegations of fact made by the non-moving party and draw all reasonable inferences from those facts in the non-moving party’s favor. Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). Complaints filed by pro se plaintiffs are generally held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Nevertheless, pro se plaintiffs must meet jurisdictional requirements. Bernard v. United States, 59 Fed.Cl. 497, 499, aff'd, 98 Fed.Appx. 860 (Fed.Cir.2004) (unpublished). If the court determines that it does not have jurisdiction, it must dismiss the claim. RCFC 12(h)(3). The Tucker Act establishes and limits the jurisdiction of the Court of Federal Claims. 28 U.S.C. § 1491 (2006). The Tucker Act provides that this court has jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act provides the waiver of sovereign immunity necessary for a plaintiff to sue the United States for money damages. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). However, the Tucker Act does not confer any substantive rights upon a plaintiff. United States v. Testan, 424 U.S. 392, 398-401, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A plaintiff must establish an independent substantive right to money damages from the United States, that is, a money-mandating source within a contract, regulation, statute or constitutional provision itself, in" }, { "docid": "19168872", "title": "", "text": "28 U.S.C. § 1491(a)(1) (2006), and the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80, and invoke the Eighth Amendment. See id. at 2 (citing 28 U.S.C. § 2674 and the Tucker Act in support of jurisdiction and stating that the “claim involves the 8th Amendment”). The United States (defendant or the government) has filed a motion to dismiss for lack of subject matter jurisdiction on the basis that “the Court does not possess jurisdiction to entertain claims that sound in tort.” Def.’s Mot. to Dismiss (defendant’s Motion or Def.’s Mot.), Dkt. No. 4, at 1. Now before the court are plaintiffs’ Complaint, filed December 10, 2012, and defendant’s Motion, filed February 8, 2013. Pursuant to the Rules of the United States Court of Federal Claims (RCFC), plaintiffs had thirty-one days to file a response to defendant’s Motion. See RCFC 7.2(b)(1) (allowing twenty-eight days to respond to a motion to dismiss); RCFC 6(d) (allowing three additional days when a motion to dismiss is served by mail). As of the date of this Opinion and Order, plaintiffs have failed to submit a response. Nevertheless, because the court finds that it lacks jurisdiction for the reasons stated below, defendant’s Motion is GRANTED and plaintiffs’ claims are dismissed. II. Legal Standards A. Motion to Dismiss for Lack of Subject Matter Jurisdiction Rule 12(b)(1) of the RCFC governs motions to dismiss for lack of subject matter jurisdiction. See RCFC 12(b)(1). Because subject matter jurisdiction is a threshold matter, it must be established before the ease can proceed on the merits. Steel Co. v. Citizens for a Better Env’t (Steel Co.), 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). Pursuant to the Tucker Act, this court has jurisdiction over “elaim[s] against the United States founded ... upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (emphasis added). Although" }, { "docid": "8828152", "title": "", "text": "to the face of the pleadings____”). If the court determines that it does not have jurisdiction, it must dismiss the claim. RCFC 12(h)(3). The Tucker Act establishes and limits the jurisdiction of the Court of Federal Claims. See 28 U.S.C. § 1491 (2012). The Tucker Act affords this court jurisdiction over claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” Id. § 1491(a)(1). Although the Tucker Act waives the sovereign immunity necessary for a plaintiff to sue the United States for money damages, United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), it does not confer any substantive rights upon a plaintiff, United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A plaintiff must establish an independent substantive right to money damages from the United States—that is, a money-mandating source within a contract, regulation, statute or eon stitutional provision—in order for the case to proceed. See Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008). The CDA is such a money-mandating statute. The CDA confers upon this court the authority to adjudicate a claim for monetary damages arising from “any express or implied contract ... made by an executive agency for ... the procurement of property, other than real property in being.” 41 U.S.C. § 7102(a)(1); cf. Kelley v. United States, 19 Cl.Ct. 155, 160 (1989) (“Under the CDA, the [Court of Federal Claims] has jurisdiction to entertain claims arising from the lease of real property____”). B. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim A motion to dismiss pursuant to RCFC 12(b)(6) asserts a “failure to state a claim upon which relief can be granted.” RCFC 12(b)(6). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its" }, { "docid": "19044392", "title": "", "text": "to RCFC 12(b)(1), the Court is “obligated to assume all factual allegations to be true and to draw all reasonable inferences in [the] plaintiff’s favor.” Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995); see Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir.2004). If subject matter jurisdiction is challenged, the plaintiff cannot rely merely on allegations in the complaint, but must instead bring forth relevant, competent proof to establish jurisdiction. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Reynolds, 846 F.2d at 747-48. When ruling on a motion to dismiss for lack of subject matter jurisdiction, a court may consider evidence and resolve factual disputes over the jurisdictional facts. Reynolds, 846 F.2d at 747; see also Rocovich v. United States, 933 F.2d 991, 994 (Fed.Cir.1991); Int’l Mgmt. Servs., Inc. v. United States, 80 Fed.Cl. 1, 2 n. 2 (2007). In their briefing on the Government’s motion to dismiss, both parties have filed exhibits to support their respective positions. The Court considers these exhibits in determining whether jurisdiction is proper. B. Subject Matter Jurisdiction Whether a court possesses jurisdiction is a threshold matter in every case. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “Subject-matter jurisdiction may be challenged at any time by the parties or by the court sua sponte.” Folden, 379 F.3d at 1354; see also Arbaugh v. Y & H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Plaintiff alleges that he is entitled to back pay under the Military Pay Act, and that this Court has jurisdiction over his claim pursuant to the Tucker Act, 28 U.S.C. § 1491 (2006). Compl. ¶ 2. The Tucker Act grants this Court jurisdiction over monetary actions “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” § 1491(a)(1). The" }, { "docid": "2843848", "title": "", "text": "— as long as the petitioner asserted nonfrivolous claims. 978 F.2d at 687-88. Similarly, the Supreme Court has identified that “[dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.’ ” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974)). Confusion may have arisen here because jurisdiction in this case is governed by the Tucker Act. The Tucker Act grants the United States Court of Federal Claims jurisdiction over claims for money damages “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2000); United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Recently we noted: In Tucker Act jurisprudence [the] neat division between jurisdiction and merits has not proved to be so neat. In these cases, involving suits against the United States for money damages, the question of the court’s jurisdictional grant blends with the merits of the claim. This mixture has been a source of confusion for litigants and a struggle for the courts. Fisher v. United States, 402 F.3d 1167, 1171 (Fed.Cir.2005). However, Fisher addressed how the Court of Federal Claims should determine whether the “Constitutional provision, statute, or regulation is one that is money-mandating.” Id. at 1173. We concluded that the determination of whether a claim’s source is money-mandating “shall be determinative both as to the question of the court’s jurisdiction and thereafter as to the question of whether, on the merits, plaintiff has a money-mandating source on which to base his cause of action.” Id. Here" }, { "docid": "178352", "title": "", "text": "to transfer the third-party complaint in the Fund’s suit to this court, New Anchor and Tank voluntarily dismissed its third-party complaint in OEG’s action and pursued the instant action in this court. Id. MOTION TO DISMISS A. Subject Matter Jurisdiction The Tucker Act, 28 U.S.C. § 1491, grants this court jurisdiction over claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liqui dated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). “Because the Tucker Act ‘does not confer any substantive rights upon a plaintiff,’ the plaintiff[s] also ‘must establish an independent substantive right to money damages from the United States — that is, a money-mandating source within a contract, regulation, statute or constitutional provision — in order for the case to proceed.’ ” Laughlin v. United States, 124 Fed.Cl. 374, 381 (2015) (quoting Volk v. United States, 111 Fed.Cl. 313, 323 (2013) (in turn citing United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1306 (Fed.Cir. 2008))), appeal docketed, No. 16-1627 (Fed. Cir. Feb. 24, 2016). The court must dismiss any claims for which it determines that it does not have subject matter jurisdiction. See RCFC 12(h)(3). New Anchor and Tank, as plaintiffs in this instance, must establish this court’s subject matter jurisdiction by a preponderance of the evidence before the court can proceed to the merits of them claims. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Taylor v. United States, 303 F.3d 1357, 1359 (Fed.Cir.2002); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). When considering a motion to dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1), the court will “normally consider the facts alleged in the complaint to be true and correct.” Reynolds, 846 F.2d at 747 (citing Scheuer v. Rhodes, 416 U.S." }, { "docid": "16298525", "title": "", "text": "in support of their claim, and defendant filed its Sur-Surreply in Support of Its Motion to Dismiss for Lack of Subject Matter Jurisdiction or, in the Alternative, for Failure to State a Claim Upon Which Relief Can Be Granted (Def.’s Sur-Surreply or Sur-Surreply) on January 4, 2006. Because neither the statutes nor the accompanying regulations on which plaintiffs base their claim require the payment of a hazard pay differential for exposure to second-hand smoke, defendant’s motion is GRANTED. II. Discussion A. Subject Matter Jurisdiction 1. Standard of Review Because subject matter jurisdiction is “an ‘inflexible’ threshold matter,” the court must determine at the outset whether it has jurisdiction over the subject matter. Abbott v. United States, 47 Fed.Cl. 582, 584 (2000) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)); Nippon Steel Corp. v. United States, 219 F.3d 1348, 1352 (2000) (holding that the jurisdictional question must be answered affirmatively before deciding the merits of a case: ‘Without jurisdiction the court cannot proceed at all in any cause.”). If the court does not have jurisdiction, it must dismiss the claim. RCFC 12(h)(3); see Miller v. United States, 67 Fed.Cl. 195, 197 (2005). In order for this court to have subject matter jurisdiction over a claim under the Tucker Act, 28 U.S.C. § 1491(a)(1) (2000), plaintiffs must identify a “separate source of substantive law,” such as a statute or regulation, “that can ‘fairly be interpreted’ as mandating compensation by the United States.” Miller, 67 Fed.Cl. at 197 (citing Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (Fisher II)); Carroll v. United States, 67 Fed.Cl. 82, 84 (2005) (citing United States v. Mitchell, 463 U.S. 206, 218-19, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)). Under a former articulation of the test, a plaintiff need only have made a “non-frivolous allegation that the statute or regulation [might have been] fairly interpreted as money-mandating,” and the question as to whether the allegations contained in the complaint would place plaintiffs claim within the purview of the statute was considered a second step. Fisher" }, { "docid": "20473837", "title": "", "text": "in the July 31, 1985 letter by stating that the Amarillo Post Office was not hiring new employees. Defendant filed a motion to dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1). Defendant makes two arguments: (1) that the Agreement is not money-mandating, therefore, this court does not have jurisdiction under the Tucker Act; and (2) this court does not have jurisdiction because plaintiffs claims are barred by the six-year statute of limitations set forth in the Tucker Act, 28 U.S.C. § 2501 (2006). We agree only with the second contention. DISCUSSION Jurisdiction is a threshold matter. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). If the court determines that it lacks subject-matter jurisdiction, it must dismiss the action. RCFC 12(h)(3). In considering defendant’s motion to dismiss, we must assume factual allegations in the complaint are true and draw all reasonable inferences in plaintiffs favor. Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). Plaintiff, however, bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). I. The court has jurisdiction over breach of the EEOC agreement The Tucker Act confers upon this court jurisdiction to “render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2006). The Tucker Act “itself does not create a substantive cause of action; in order to come within the jurisdictional reach and the waiver [of sovereign immunity in] the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc portion). The separate source of substantive law must represent a “money-mandating constitutional provision, statute or regulation that has been violated, or an" }, { "docid": "19168873", "title": "", "text": "plaintiffs have failed to submit a response. Nevertheless, because the court finds that it lacks jurisdiction for the reasons stated below, defendant’s Motion is GRANTED and plaintiffs’ claims are dismissed. II. Legal Standards A. Motion to Dismiss for Lack of Subject Matter Jurisdiction Rule 12(b)(1) of the RCFC governs motions to dismiss for lack of subject matter jurisdiction. See RCFC 12(b)(1). Because subject matter jurisdiction is a threshold matter, it must be established before the ease can proceed on the merits. Steel Co. v. Citizens for a Better Env’t (Steel Co.), 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). Pursuant to the Tucker Act, this court has jurisdiction over “elaim[s] against the United States founded ... upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (emphasis added). Although the Tucker Act serves as a waiver of sovereign immunity and a jurisdictional grant, it does not create a substantive cause of action. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008). Therefore, a plaintiff must satisfy the court that “ ‘a separate source of substantive law ... creates the right to money damages.’ ” Id. (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc in relevant part)). This court has no authority to hear tort claims against the United States because the Tucker Act expressly excludes such claims from the jurisdiction of the court. See Brown v. United States, 105 F.3d 621, 623 (Fed.Cir.1997) (citing 28 U.S.C. § 1491(a) and Keene Corp. v. United States, 508 U.S. 200, 214, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993)); see, e.g., Souders v. S.C. Pub. Serv. Auth., 497 F.3d 1303, 1307 & n. 5 (Fed.Cir.2007) (holding that the plaintiff’s negligence claims sounded in tort and thus were beyond the jurisdiction of the United States Court of Federal Claims (Court of" }, { "docid": "14908822", "title": "", "text": "to the plaintiffs’ March 2006 request for a due process hearing, which had been untimely. In its decision letter dated November 17, 2006, the IRS concluded that the levy was appropriate. Pis.’ Ex. 4. DISCUSSION I. Jurisdiction The Court of Federal Claims is a court of “limited jurisdiction.” United States v. King, 395 U.S. 1, 3, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969). General jurisdiction of the Court of Federal Claims is derived from the Tucker Act, 28 U.S.C. § 1491 (2000). The Tucker Act provides that an action may be maintained in the Court of Federal Claims only if it is “founded upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act itself “does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Rather, “in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005). See also Testan, 424 U.S. at 398, 96 S.Ct. 948; United States v. Mitchell, 463 U.S. 206, 215-216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002 (1967). Thus, in order to establish jurisdiction, the plaintiffs must allege a money-mandating claim. The issue of whether the plaintiffs have alleged a money-mandating claim has led to some confusion over whether the plaintiffs’ failure to do so leads to dismissal under RCFC 12(b)(1) for lack of jurisdiction or RCFC 12(b)(6) for failure to state a claim upon which relief can be granted. The United States Court of Appeals for the Federal Circuit has recently stated that the Court of Federal Claims should analyze the issue as follows: [W]hen a claim is" }, { "docid": "12157961", "title": "", "text": "§ 1491(a)(1), provides a general waiver of sovereign immunity that authorizes DMCA claims against the Government. The Tucker Act gives the CFC jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). This court has explained that “because the Tucker Act itself does not create a substantive cause of action, ‘in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.’ ” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008) (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc in relevant part)). “In the parlance of Tucker Act cases, that [statutory] source must be ‘money-mandating.’ ” Fisher, 402 F.3d at 1172. A statute is money-mandating if it “ ‘can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.’ ” United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (quoting Testan, 424 U.S. at 400, 96 S.Ct. 948). Moreover, a statute can be interpreted as money-mandating if it grants the claimant a right to recover damages either “expressly or by implication.” Id. at 217 n. 16, 103 S.Ct. 2961 (citation omitted). Here, the DMCA cannot be fairly interpreted as containing either an express or implied right to recover money-damages from the Government. First, as discussed above, the substantive prohibitions of the DMCA refer to persons, not the Government. Second, the DMCA specifically grants jurisdiction over DMCA claims to federal district courts, not the CFC. See 17 U.S.C. § 1203(a) (providing that “[a]ny person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation” (emphasis added)). This court has held that the CFC lacks jurisdiction to" }, { "docid": "11814299", "title": "", "text": "In this regard, the United States Court of Federal Claims is a court of limited jurisdiction and “possesses] only that power authorized by Constitution and statute ....” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The Tucker Act grants the Court jurisdiction over: [A]ny claim against the United States founded either upon the Constitution,, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract -with the United States,' or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). The Tucker Act, however, is a “jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages .... [T]he Act merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the substantive right exists.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). And so, to pursue a substantive right against the United States under the Tucker Act, a plaintiff must identify and plead a money-mandating constitutional provision, statute, or regulation; an express or implied contract with the United States; or an illegal exaction of money by the United States. Cabral v. United States, 317 Fed.Appx. 979, 981 (Fed.Cir.2008) (citing Fisher v. United States, 402 F.3d 1167, 1173 (Fed.Cir.2005)); Norman v. United States, 429 F.3d 1081, 1095 (Fed.Cir.2005). “[A] statute or regulation is money-mandating for jurisdictional purposes if it ‘can fairly be interpreted as mandating compensation for damages sustained as a result of the breach of the duties [it] impose[s].’ ” Fisher, 402 F.3d at 1173 (quoting United States v. Mitchell, 463 U.S. 206, 217, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)) (brackets in original). B. RCFC 12(b)(6) When deciding a motion to dismiss based upon failure to state a claim upon which relief may be granted pursuant to RCFC 12(b)(6), this Court must also assume that all undisputed facts alleged in the complaint are true and draw all reasonable inferences in the non-movant’s favor. Erickson, 551 U.S. at 94, 127 S.Ct." }, { "docid": "2928882", "title": "", "text": "2010 Interim Contract. II. Legal Standards A. Jurisdiction Subject matter jurisdiction is a threshold matter that a court must determine at the outset of a case. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). Pursuant to the Tucker Act, the United States Court of Federal Claims (Court of Federal Claims) has jurisdiction over “any claim against the United States founded ... upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1) (2006). The Tucker Act serves as a waiver of sovereign immunity and a jurisdictional grant, but it does not create a substantive cause of action. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008). A plaintiff must, therefore, “ ‘identify a separate source of substantive law that creates the right to money damages.’ ” Id. (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (en banc in relevant part)). The court’s six-year statute of limitations, a condition on the Tucker Act’s waiver of sovereign immunity, further limits the court’s jurisdiction. See Martinez v. United States, 333 F.3d 1295, 1316 (Fed.Cir.2003) (en banc) (“It is well established that statutes of limitations for causes of action against the United States, being conditions on the waiver of sovereign immunity, are jurisdictional in nature.”); see also Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957) (stating that the United States Supreme Court “has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed”). Because the statute of limitations in this court is jurisdictional, Martinez, 333 F.3d at 1316, it cannot be waived, see John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 134-35, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008) (noting the “absolute nature” of “jurisdictional” limitations statute for this court). The statute of limitations provides that claims" }, { "docid": "19366836", "title": "", "text": "Steel Co. v. Citizens for a Better Env’t (Steel Co.), 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Star, Inc., 484 F.3d 1359, 1365 (Fed.Cir. 2007). Plaintiff bears the burden of establishing subject matter jurisdiction, and the court may determine whether he has met this burden once he has had an opportunity to be heard on the matter. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (citing Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir.1969)). If the court determines that it lacks subject matter jurisdiction, it must dismiss the claim. Steel Co., 523 U.S. at 94, 118 S.Ct. 1003; Matthews v. United States, 72 Fed.Cl. 274, 278 (2006); Rules of the United States Court of Federal Claims (RCFC) 12(h)(3). Complaints filed by pro se plaintiffs are generally held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kemer, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Nevertheless, pro se plaintiffs must meet jurisdictional requirements. Bernard v. United States, 59 Fed.Cl. 497, 499, ajfd, 98 Fed.Appx. 860 (Fed.Cir. 2004) (unpublished). Like all federal courts, the United States Court of Federal Claims (CFC) is a court of limited jurisdiction. The jurisdiction of the CFC is set forth in the Tucker Act, 28 U.S.C. § 1491 (2006). The Tucker Act provides that the CFC has jurisdiction to hear claims against the United States founded upon “any Act of Congress or any regulation of an executive department ... or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). However, the Tucker Act “does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). In order to establish subject matter jurisdiction in the CFC, a plaintiff must point to a relevant money-mandating statute, regulation or Constitutional provision. Id. 2. Veteran Benefit Determinations Title 38 of the United States Code sets forth a comprehensive adjudicatory scheme for maldng veteran benefit determinations. Under this" }, { "docid": "15247530", "title": "", "text": "ease can proceed on the merits. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). Plaintiffs bear the burden of establishing subject matter jurisdiction, and the court may determine whether they have met this burden once they have had an opportunity to be heard on the matter. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (citing Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir.1969)). If the court determines that it lacks subject matter jurisdiction, it must dismiss the claim. Steel Co., 523 U.S. at 94, 118 S.Ct. 1003; Matthews v. United States, 72 Fed.Cl. 274, 278 (2006); Rules of the United States Court of Federal Claims (RCFC) 12(h)(3). Like all federal courts, the United States Court of Federal Claims (CFC) is a court of limited jurisdiction. The jurisdiction of the CFC is set forth in the Tucker Act, 28 U.S.C. § 1491. The Tucker Act provides that the CFC has jurisdiction to hear claims against the United States founded upon “the Constitution, or any Act of Congress or any regulation of an executive department, ... or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). Plaintiffs have brought claims under the FLSA, 29 U.S.C. §§ 201-219. The CFC has jurisdiction over claims brought pursuant to the FLSA. Whalen v. United States, 80 Fed.Cl. 685, 687 (2008); see Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1364-65 (Fed.Cir.2005). B. Standard of Review The parties have cross-moved for summary judgment pursuant to RCFC 56. See Pis.’ Mot. 9-10; Def.’s Mot. 1. A motion for summary judgment may be granted only when “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” RCFC 56(c)(1). A fact is material if it might significantly affect the outcome of the suit. Anderson v. Liberty Lobby, Inc. (Liberty Lobby), 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)." } ]

[ { "docid": "22054072", "title": "", "text": "Clerks, 281 U. S. 548; Virginian Railway Co. v. System Federation No. 40, 300 U. S. 515. As Congress was free to establish the categories which should be excepted, Congress could bring to its aid an administrative agency to determine the question of fact whether a particular railroad fell within the exception, and Congress could make that factual determination, after hearing and upon evidence, conclusive. St. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 51. For that purpose Congress could create a new administrative agency or use one already existing. And as the questions of fact involved would relate to methods of railroad transportation, and thus to a field in which the Interstate Commerce Commission had peculiar expertness, Congress could fittingly commit the determination to that body. Congress did not define the term “interurban.” Despite the desirability of such a definition and the diffi culties occasioned by its absence, the term is not so destitute of meaning that it can be denied effect as a valid description. Respondent, standing upon the exception, necessarily treats it as valid and hence as susceptible of application. That view presupposes that the term “interurban” denotes distinguishing factual characteristics which on appropriate inquiry may be ascertained. We have so treated the term in other relations. Piedmont & Northern Ry. Co. v. Interstate Commerce Comm’n, 286 U. S. 299; United States v. Chicago North Shore & M. R. Co., 288 U. S. 1. The conferring of authority upon the Interstate Commerce Commission to determine whether a particular electric railway is an interurban one cannot be regarded as an unconstitutional delegation of power. See United States v. Chicago North Shore & M. R. Co., supra, at pp. 13, 14. In the instant case, the Interstate Commerce Commission has made the determination contemplated by the statute and we are not concerned with the questions which might arise in its absence. The Commission’s determination was one of fact. Shannahan v. United States, 303 U. S. 596, 599. What effect shall be ascribed to it? The argument is pressed that the determination is at best persuasive and" } ]

[ { "docid": "22778195", "title": "", "text": "deprived them of a pre-existing right. As my Brother Douglas demonstrates, it is at very least doubtful that the Due Process Clause permits a State to shield an administrative agency from all judicial review when that agency acts to revoke a benefit previously granted. I share the view of Mr. Justice Brandéis that “[t]he supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied; and whether the proceeding in.which facts were adjudicated was conducted regularly.” St. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 84 (1936) (concurring opinion). Cf. Yakus v. United States, 321 U. S. 414 (1944); Crowell v. Benson, 285 U. S. 22 (1932). That opportunity was denied in this case, and important benefits were thereby taken from appellants without affording them a chance to contest the legality of the taking in a court of law. Cf. Fuentes v. Shevin, 407 U. S. 67 (1972). The extent to which the State may commit to administrative agencies the unreviewable authority to restrict pre-existing rights is one of the great questions of constitutional law about which courts and commentators have debated for generations. See generally Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953); 4 K. Davis, Administrative Law Treatise § 28.18 (1958). Because I am not ready to decide that question summarily, sub silentio, and without the benefit of full briefing and oral argument, I must dissent from the Court’s decision. The majority’s statement that “[t]his Court has long recognized that, even in criminal cases, due process does not require a State to provide an appellate system,” ante, at 660, is thus true, but irrelevant and misleading. The cases cited by the majority all involve efforts to secure appellate review of a decision by a lower court. Here, in contrast, no court has ever examined appellants’ claims on the merits. Appellants assert only that they must have some access to some court to contest the legality of administrative action adversely affecting" }, { "docid": "860703", "title": "", "text": "was properly before the District Court because the 1890 Act limited the jurisdiction of the Customs Court to questions relating to the rates and amounts of duties payable on articles agreed to be imported, but did not extend to the Customs Court authority to determine the threshold issue of importation. In DeLima, the Supreme Court, following Fassett, ruled that an action challenging the customs taxation of sugar from Puerto Rico was properly within the jurisdiction of the District Court and not within the jurisdiction of the Customs Court, because the contested issue was whether Puerto Rico, a possession of the United States, was a foreign country within the meaning of the Act. Since the decisions in Fassett and DeLima, subsequent customs legislation has significantly modified the 1890 Customs Administrative Act, and in cases arising under the more recent customs laws, the courts have consistently rejected jurisdictional arguments similar to that advanced by the present plaintiffs. Argosy Ltd. v. Hennigan, 404 F.2d 14 (5th Cir.1968); J. C. Penney Co., Inc. v. United States Treasury Department, 439 F.2d 63 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971); Kocher v. Fowler, 130 U.S.App.D.C. 80, 397 F.2d 641 (1967), cert. denied, 391 U.S. 920, 88 S.Ct. 1805, 20 L.Ed.2d 657 (1968); North American Cement Corp. v. Anderson, 109 U.S.App.D.C. 162, 284 F.2d 591 (1960); Eastern States Petroleum Corp. v. Rogers, 108 U.S.App.D.C. 63, 280 F.2d 611, cert. denied, 364 U.S. 891, 81 S.Ct. 222, 5 L.Ed.2d 187 (1960) ; Morgantown Glassware Guild v. Humphrey, 98 U.S.App.D.C. 375, 236 F.2d 670, cert. denied, 352 U.S. 896, 77 S.Ct. 133, 1 L.Ed.2d 87 (1956); Riccomini v. United States, 69 F.2d 480 (9th Cir. 1934); Cottman Co. v. Dailey, 94 F.2d 85 (4th Cir. 1938); Altieri v. United States, 299 F.Supp. 458 (D.P.R.1969); Horton v. Humphrey, 146 F.Supp. 819 (D.D.C.), aff’d without opinion, 352 U.S. 921, 77 S.Ct. 224, 1 L.Ed.2d 157 (1956). Particularly apposite to the present case is Argosy Ltd. v. Hennigan, supra, a suit to enjoin the seizure of a yacht on which duty had not been paid," }, { "docid": "22951799", "title": "", "text": "Court. Penney contends that neither provision bars its suit in the District Court, since its claim in no way concerns the substantive issues which require the expertise possessed by members of the Customs Court. It is therefore contended that the policy behind the grant of exclusive jurisdiction is absent in this case and that constitutional issues can and should be tried in the district courts. To be sure, the nature and extent of procedural due process that must be employed in an administrative proceeding is a question with which federal courts of general jurisdiction frequently deal. However, the procedural issues here arise directly from controversies over issues of substantive customs laws. Although it is conceivable that separate courts could deal with the separate procedural and substantive issues involved, such a result would significantly undermine Congress’ “complete system of corrective justice with respect to matters arising under the customs laws.” Cottman Co. v. Dailey, 94 F.2d 85, 88 (4 Cir. 1938). In interpreting legislation such as that involved in this case, “[e]ourts must * * * look to the logic of Congress and to the broad national policy which prompted the legislation.” Argosy Ltd. v. Hennigan, 404 F.2d 14, 20 (5 Cir. 1968). The precursor to the Customs Court, the Board of General Appraisers, was established by the Customs Administrative Act of 1890, ch. 407, §§ 12-14, 26 Stat. 137. The court. itself was created by the Act of May 28, 1926, ch. 411, 44 Stat. 669, and was given all the powers of the Board of General Appraisers. Metzger & Musrey, “Judicial Review of Tariff Commission Actions and Proceedings,” 56 Cornell L.Rev. 285 (1971). See generally, Johnson, “The United States Customs Court — Its History, Jurisdiction, and Procedure,” 7 Oklahoma L.Rev. 393 (1954). Even in the early days of its existence, the Customs Court was recognized as having a broad jurisdiction to deal with matters related to questions of customs law. See Brown, “The United States Customs Court,” at 15 (1933). In 1948, Congress inserted into the United States Code two sections providing for the “exclusive jurisdiction” of the Customs" }, { "docid": "12947702", "title": "", "text": "general authority to administer the grant, and if his decisioin of fact in this instance was made within the scope of such authority, there can be no doubt that his decision is conclusive on the courts, in the absence, at any rate, of fraud or imposition. The holdings to this effect are too numerous for citation, but among those apposite are Catholic Bishop of Nesqually v. Gibbon, 158 U.S. 155, 15 S.Ct. 779, 39 L.Ed. 931; Cameron v. United States, 252 U.S. 450, 40 S.Ct. 410, 64 L.Ed. 659; St. Louis Smelting & Refining Co. v. Kemp, 104 U.S. 636, 26 L.Ed. 875; Wright v. Roseberry, 121 U.S. 488, 7 S.Ct. 985, 30 L.Ed. 1039; Burke v. Southern Pacific R. Co., 234 U.S. 669, 34 S.Ct. 907, 58 L.Ed. 1527; Johnson v. Drew, 171 U.S. 93, 99, 18 S.Ct. 800, 43 L.Ed. 88.” Standard Oil Co. of California v. United States, 107 F.2d 402 at p. 410: “Of course, in order to give conclusive effect to his decision, the Secretary’s power in the premises must be exercised within the limits of due process, that is, after notice and hearing and upon evidence. Cameron v. United States, supra; Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598, supra; Shields v. Utah & Idaho R. Co., supra. Compare Iron Silver M. Co. v. Campbell, 135 U.S. 286, 10 S.Ct. 765, 34 L.Ed. 155. But there is here no question of due process. Appellants participated in the proceeding before the department and make no complaint that they were not accorded full opportunity to present their evidence.” . Best v. Humboldt Mining Company, 371 U.S. 334, at p. 336, 83 S.Ct. 379, at p. 382: “ * * * the Department has been granted plenary authority over the administration of public lands, including mineral lands; and it has been given broad authority to issue regulations concerning them.” Best v. Humboldt Mining Company, 371 U.S. 334, at p. 337, 83 S.Ct. 379, at page 483: “ ‘Due process in such case implies notice and a hearing. But this does not require that" }, { "docid": "23185750", "title": "", "text": "Ed. 42, and even before that time, it has been consisiontly recognized that this neither invalidates the administrative action, as in effect constituting a delegation of judicial powers to an executive officer, in the constitutional sense, nor gives to Congress the power to require constitutional courts to review the administrative decisions so reached. In United States v. Ferreira, supra, the court says, in eom-meniing upon the executive exercise of the judicial function: “The powers conferred by these acts of Congress upon the judge as well as the Secretary, are, it is true, judicial in their nature. For judgment and discretion. must be exercised by both of them. But it is nothing more than the. power ordinarily given by law to a commissioner appointed to adjust claims to lands or money under a treaty; or special powers to inquire into or decide any other particular class of controversies in which the public or individuals may be concerned. A power of this description may constitutionally be conferred on a Secretary as well as on a commissioner. But is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States.” See, also, Reetz v. Michigan, 188 U. S. 505, 507, 23 S. Ct. 390, 47 L. Ed. 563; Tracy v. Commissioner, 53 F.(2d) 575, 578 ,(C. C. A. 6). Thus we see that, in spite of its independence of other administrative departments, bureaus, or officers, and its exercise of judicial functions in the performance of the duties imposed upon it, the Board of Tax Appeals cannot be considered as other than an administrative agency, the superior of the Commissioner of Internal Revenue ■ in the-same field. The question remains whether Congress may authorize and require a review- by constitutional courts of the United States, of the administrative action of the Board, where, by virtue of the very action to be reviewed; the assessment has been nullified and no obligation to pay a tax exists. In my-opinion, this question must be answered in the negative. Where a federal administrative decision creates" }, { "docid": "22662611", "title": "", "text": "must be vested in Art. Ill courts. See Brief for United States 11-13, 37-45. As support for their argument, appellants rely principally upon Crowell v. Benson, 285 U. S. 22 (1932), and United States v. Raddatz, 447 U. S. 667 (1980), cases in which we approved the use of administrative agencies and magistrates as adjuncts to Art. Ill courts. Brief for United States 40-42. The question to which we turn, therefore, is whether the Act has retained “the essential attributes of the judicial power,” Crowell v. Benson, supra, at 51, in Art. III tribunals. The essential premise underlying appellants’ argument is that even where the Constitution denies Congress the power to establish legislative courts, Congress possesses the authority to assign certain factfinding functions to adjunct tribunals. It is, of course, true that while the power to adjudicate “private rights” must be vested in an Art. Ill court, see Part III, supra, “this Court has accepted factfinding by an administrative agency,... as an adjunct to the Art. Ill court, analogizing the agency to a jury or a special master and permitting it in admiralty cases to perform the function of the special master. Crowell v. Benson, 285 U. S. 22, 51- 65 (1932).” Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, 430 U. S., at 450, n. 7. The use of administrative agencies as adjuncts was first upheld in Crowell v. Benson, supra. The congressional scheme challenged in Crowell empowered an administrative agency, the United States Employees’ Compensation Commission, to make initial factual determinations pursuant to a federal statute requiring employers to compensate their employees for work-related injuries occurring upon the navigable waters of the United States. The Court began its analysis by noting that the federal statute administered by the Compensation Commission provided for compensation of injured employees “irrespective of fault,” and that the statute also prescribed a fixed and mandatory schedule of compensation. Id., at 38. The agency was thus left with the limited role of determining “questions of fact as to the circumstances, nature, extent and consequences of the injuries sustained by the employee for which" }, { "docid": "13443083", "title": "", "text": "repair to the United States District Court for relief. There is no merit to this contention. Congress, whenever it thinks proper, undoubtedly may, without infringing the Con stitution, confer upon an executive officer or administrative board, or an existing or spe'cially constituted court, or retain for itself, the power to -hear and determine controversies respecting claims against the United States, it follows indubitably that such power, in whatever guise or by whatever agency exercised, is no part of the judicial power vested in the constitutional courts by the Constitution. Williams v. U. S., 289 U. S. 553, 53 S. Ct. 751, 77 L. Ed. 1372. It is not important whether such a proceeding originated as an administrative or executive determination, if when it comes to court, whether legislative or constitutional, it calls for the exercise of only the judicial power of the court upon which jurisdiction has been conferred by law. Old Colony Trust Co. v. Com’r of Internal Revenue, 279 U. S. 716, 49 S. Ct. 499, 73 L. Ed. 918; Van Mourick v. Bowie et al. (App. D. C.) 69 F. (2d) 834. This system of corrective justice being complete in itself, it must be concluded that Congress did not intend to allow any other method to redress supposed wrongs occurring in the operation of the laws in relation to the collection of revenues. Gulbenkian v. U. S. (C. C. A.) 186 F. 133; Nichols v. U. S., 7 Wall. (74 U. S.) 122, 19 L. Ed. 125. Under this procedure, the appellant is precluded from suing in the District Court because jurisdiction of such causes has been expressly taken from the District Courts and conferred on the Customs Courts (sections 398, 399, Title 19 USCA; section 308, Title 28 USCA). Affirmed." }, { "docid": "22537818", "title": "", "text": "have been permissible upon such record. (b) In re Grimley, 137 U. S. 147, and In re Morrissey, 137 U. S. 157, deal with the action of military tribunals. Military tribunals form a system of courts separate from the civil courts and created by virtue of an independent grant of power in the Constitution. Art. I, § 8, cl. 14, 16. They have authority to determine finally any case over which they have jurisdiction; “ and their proceedings . . . are not open to review by the civil tribunals, except for the purpose of ascertaining whether the military court had jurisdiction of the person and subject-matter, and whether, though having such jurisdiction, it had exceeded its powers in'the sentence pronounced.” Carter v. Roberts, 177 U. S. 496, 498; Grafton v. United States, 206 U. S. 333, 347. As Congress did not provide any method for review \"by the courts of the decision of military tribunals, all questions of law concerning military jurisdiction are open to independent determinaton in the civil courts; and the cases of In re Grimley and In re Morrissey, decide nothing more. Whether Congress could make the findings of “ jurisdictional facts ” of military tribunals conclusive upon civil courts is a question, which appears never to have been raised. (c) In Noble v. Union River Logging Co., 147 U. S. 165, 174, relief was granted by bill in equity to stay illegal and unauthorized action of the Secretary of the Interior in respect to the public lands, there being no method of judicial review prescribed by statute. Compare Smelting Co. v. Kemp, 104 U. S. 636, 641. (d) In Smith v. Hitchcock, 226 U. S. 53, 58, as in Bates & Guild Co. v. Payne, 194 U. S. 106, 109, 110, and American School of Magnetic Healing Co. v. McAnnulty, 187 U. S. 94, 109, bills in equity were entertained to review acts of the Postmaster General alleged to be unauthorized, Congress not having provided any method of judicial review. In each case the question involved was stated to be one of law. The decision" }, { "docid": "22429381", "title": "", "text": "of the competency of the Department to act upon the subject matter, is always one for judicial determination. “ Of course,” said the Court in Smelting Co. v. Kemp, 104 U. S. 636, 641, “ when we speak of the conclusive presumptions attending a patent for lands, we assume that it was issued in a case where the department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the United States, and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if Congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them, and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed.” The Court .added that questions of that sort “ may be considered by a court of law ”; for in such cases “ the objection to the patent reaches beyond the action of the special tribunal, and goes to the existence of a subject upon which it was competent to act.” Id. See, also, Polk v. Wendall; 9 Cranch 87, 99; Moore v. Robbins, 96 U. S. 530, 533; Wright v. Roseberry, 121 U. S. 488, 519; Doolan v. Carr, 125 U. S. 618, 625; Hardin v. Jordan, 140 U. S. 371, 401; Crowell v. Benson, 285 U. S. 22, 58, 59. Here, the question goes to the existence of the subject upon which the Land Department was competent to act. Was it upland, which the United States could patent, or tideland, which it could not? Such a controversy as to . title is appropriately one for judicial decision upon evidence, and we find no ground for the conclusion that it has been committed to the determination of .administrative officers. Petitioners urge a distinction in that at the time of the survey no private right in the property had yet attached and the question lay between the Federal Government" }, { "docid": "13251594", "title": "", "text": "facts, its case was not one which the Commission was authorized to consider at all. It has been clearly settled that the courts have full right, when appealed to, to determine, by independent hearing, whether agencies of the government to which have been committed duties involving the exercise of administrative functions, Or powers of a judicial nature, have exercised their powers with respect to the particular persons or subject-matter: designated by Congress. If the power is lacking, the act is void. This subject in general was discussed at length in the recent decision of the Supreme 'Court. Crowell v. Benson, 285 U. S. 22, 52 S. Ct. 285, 76 L. Ed. 598. See, also, Interstate Commerce Commission v. Ill. Cent. R. R., 215 U. S. 452, 30 S. Ct. 155, 54 L. Ed. 280; Southern Pacific Co. v. Interstate Commerce Commission, 219 U. S. 433, 31 S. Ct. 288, 55 L. Ed. 283; Interstate Commerce Commission v. Union Pac. R. R., 222 U. S. 541, 32 S. Ct. 108, 56 L. Ed. 308; Tagg Bros. & Moorhead v. United States, 280 U. S. 420, at page 442, 50 S. Ct. 220, 74 L. Ed. 524. The added contention of appellant that the settlement made was one of compromise does not make a different case because the railroad company was not entitled to any amount under the facts as admitted. The United States may demand repayment of money paid out by its officers or agents where no authority of law exists for such payment. Persons so receiving public funds are charged with knowledge that they have taken that to which they have not the right, and are bound, upon demand, to return it. Decisions determining the question differently where private parties are wholly concerned, are not pertinent. No estoppel as for voluntary payment can be claimed to defeat the suit of the government: Wisconsin Central Ry. v. United States, 164 U. S. 190, 17 S. Ct. 45, 41 L. Ed. 399, cited with approval in Allen v. United States, 204 U. S. 581, 27 S. Ct. 324, 51 L. Ed. 634," }, { "docid": "22537733", "title": "", "text": "the question concerns the proper exercise of the judicial power of the United States in enforcing constitutional limitations. Even where the subject lies within the general authority of the Congress, the propriety of a challenge by judicial proceedings of the determinations of fact deemed to be jurisdictional, as underlying the authority of executive officers, has been recognized. When proceedings are taken against a person under the military law, and enlistment is denied, the issue has been tried and determined de novo upon habeas corpus. In re Grimley, 137 U. S. 147, 154, 155. See, also, In re Morrissey, 137 U. S. 157, 158; Givens v. Zerbst, 255 U. S. 11, 20. While, in the administration of the public land system, questions of fact are for the consideration and judgment of the Land Départment and its decision of such questions is conclusive, it is equally true that if lands “never were public property, or had previously been disposed of, or if Congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them.” This Court has held that “matters of this kind, disclosing.a want of jurisdiction, may be considered by a court of law. In such cases the objection to the patent reaches beyond the action of the special tribunal, and goes to the existence of a subject upon which it was competent to act.” Smelting Co. v. Kemp, 104 U. S. 636, 641. In such a case, the invalidity of the patent may be shown in a collateral proceeding. Polk v. Wendell, 9 Cranch 87; Patterson v. Winn, 11 Wheat. 380; Minter v. Crommelin, 18 How. 87; Morton v. Nebraska, 21 Wall. 660, 675; Noble v. Union River Logging Co., 147 U. S. 165, 174. The question whether a publication is a ! book ’ or a ‘ periodical ’ has been reviewed' upon the evidence received in a suit brought to restrain the -Postmaster General from acting beyond his authority in excluding the publication from carriage as second class mail matter. Smith v. Hitchcock, 34 App. D. C., 521, 530-533;" }, { "docid": "22626974", "title": "", "text": "judges of the arbitrator’s decision. Article III, § 1, establishes a broad policy that federal judicial power shall be vested in courts whose judges enjoy life tenure and fixed compensation. These requirements protect the role of the independent judiciary within the constitutional scheme of tripartite government and assure impartial adjudication in federal courts. United States v. Will, 449 U. S. 200, 217-218 (1980); Buckley v. Valeo, 424 U. S. 1, 122 (1976) (per curiam). An absolute construction of Article III is not possible in this area of “frequently arcane distinctions and confusing precedents.” Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S., at 90 (opinion concurring in judgment). “[NJeither this Court nor Congress has read the Constitution as requiring every federal question arising under the federal law ... to be tried in an Art. Ill court before a judge enjoying life tenure and protection against salary reduction.” Palmore v. United States, 411 U. S. 389, 407 (1973). Instead, the Court has long recognized that Congress is not barred from acting pursuant to its powers under Article I to vest decisionmaking authority in tribunals that lack the attributes of Article III courts. See, e. g., Walters v. National Assn. of Radiation Survivors, ante, p. 305 (Board of Veterans’ Appeals); Palmore v. United States, supra (District of Columbia courts); Crowell v. Benson, 285 U. S. 22 (1932) (Deputy Commissioner of Employees’ Compensation Commission); Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856) (Treasury accounting officers). Many matters that involve the application of legal standards to facts and affect private interests are routinely decided by agency action with limited or no review by Article III courts. See, e. g., 5 U. S. C. §§ 701(a)(1), 701(a)(2); Heckler v. Chaney, 470 U. S. 821, 837-838 (1985); United States v. Erika, Inc., 456 U. S. 201, 206 (1982) (no review of Medicare reimbursements); Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 18 (1983) (administrative agencies can conclusively adjudicate claims created by the administrative state, by and against private persons); Redish, Legislative Courts, Administrative Agencies, and the" }, { "docid": "22716826", "title": "", "text": "Weber, 423 U. S., at 271. On his Art. III claim, Crowell v. Benson, 285 U. S. 22 (1932), and its progeny offer little comfort to respondent. There, the Court stated that “[i]n cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function.” Id., at 60. See also Ng Fung Ho v. White, 259 U. S. 276 (1922). While stating that “the enforcement of constitutional rights requires that the Federal court should determine such an issue upon its own record and the facts elicited before it,” 285 U. S., at 64, the Court pointedly noted a “distinction of controlling importance” between records formed before administrative agencies and those compiled by officers of the court such as masters in chancery or commissioners in admiralty where the proceeding is “constantly subject to the court’s control.” We view the statutory scheme here as rendering a magistrate’s recommendations more analogous to a master or a commissioner than to an administrative agency for Art. Ill purposes. Moreover, four years later, in St. Joseph Stock Yards Co. v. United States, 298 U. S. 38 (1936), Mr. Chief Justice Hughes substantially cut back on the Court’s Crowell holding, which he had authored, and on which respondent relies. The question there was whether administrative rate regulations were unconstitutionally confiscatory. While reaffirming his statement that administrative agencies cannot finally determine “constitutional facts,” Mr. Chief Justice Hughes noted: “But this judicial duty to exercise an independent judgment does not require or justify disregard of the weight which may properly attach to findings [by an administrative body] upon hearing and evidence. On the contrary, the judicial duty is performed in the light of the proceedings already had and may be greatly facilitated by the assembling and analysis of the facts in the course of the legislative determination.” 298 U. S., at 53. See also Estep v. United States, 327 U. S. 114, 122-123 (1946). Thus, although the statute permits the district court to give to the" }, { "docid": "22765181", "title": "", "text": "subject to be patented was the only necessary prerequisite to a valid patent. In the one class of cases, it is held that if the land attempted to be patented had been reserved, or was at the time no part of'the public domain, the Land Department had no jurisdiction over it and no power or authority to dispose of it. In such cases its action in certifying the lands under a railroad grant, or in.issuing a patent, is not merely irregular, but absolutely void, and may be shown to be so in any collateral proceeding. Polk's Lessee v. Wen dall, 9 Cranch, 87; Patterson v. Winn, 11 Wheat. 380; Jackson v. Lawton, 10 Johns. 23; Minter v. Crommelin, 18 How. 87; Reichart v. Felps, 6 Wall. 160; Kansas Pacific Railway v. Dunmeyer, 113 U. S. 629 ; United States v. Southern Pacific Railroad, 146 U. S. 570. Upon the other hand, if the patent be for lands which the Land Department had authority to convey, but it was imposed ■upon, or was induced by false representations to issue a patent, the finding of the department upon such facts cannot be collaterally impeached, and the patent can only be avoided by proceedings taken for that purpose. As was said in Smelting Co. v. Kemp, 104 U. S. 636, 640 : “ In that respect they ” (the officers of the Land Department) “ exercise a judicial function, and, therefore, it has been held in various instances by this court that their judgment as to matters of fact, properly determinable by them, is conclusive when brought to notice in a collateral proceeding. Their judgment in such cases is, like that of other special tribunals upon matters within their exclusive jurisdiction, unassailable except by a direct proceeding for its •correction or annulment.” In French v. Fyan, 93 U. S. 169, it was held that the action of the Secretary of the Interior identifying swamp lands, making lists thereof and issuing patents therefor, could not be impeached in an action at law by showing that the lands which the patent conveyed were not in" }, { "docid": "18995513", "title": "", "text": "claim, however, presents a different problem. It is alleged therein that the collector illegally exercised the function of the Secretary of the Treasury and failed to comply with certain mandatory regulations. While this court may not review issues the final determination of which has been conferred upon the Secretary of the Treasury, the validity of the action of the Secretary or other administrative official may be reviewed by the court, provided the legality of such action is properly raised by the filing of a timely protest. Waterman Steamship Corp. v. United States, 30 C. C. P. A. (Customs) 119, 125, C. A. D. 223; Hampton, Jr., & Co. v. United States, 14 Ct. Cust. Appls. 350, T. D. 42030 (affirmed in J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394; United States v. Tower & Son, 14 Ct. Cust. Appls. 421, T. D. 42058; Carl Zeiss, Inc. v. United States, 23 C. C. P. A. (Customs) 7, T. D. 47654. In Barr v. United States, 324 U. S. 83, the Supreme Court stated (p. 94): * * * Congress has granted judicial review of the decisions of the collector including the legality of the orders and findings entering into the protested decision. §§ 514-517. If the decision of the collector contravenes the statutory scheme and disregards rights which Congress has bestowed, the fact that he acts pursuant to the directions of the Secretary does not save his decision from review. * * * The instant case involves the validity of a finding of the collector entering into the protested decision, namely, that no refund should be allowed because of the alleged injury or destruction of a portion of the imported merchandise. It is claimed, in effect, that the collector disregarded the statutory scheme by exercising a function reserved to the Secretary of the Treasury or his duly empowered representative and by failing to comply with certain mandatory regulations. Under these circumstances, the court may review the legality of the collector’s action. As to plaintiff’s third claim, therefore, defendant’s motion to dismiss the protest is denied. We" }, { "docid": "22626975", "title": "", "text": "its powers under Article I to vest decisionmaking authority in tribunals that lack the attributes of Article III courts. See, e. g., Walters v. National Assn. of Radiation Survivors, ante, p. 305 (Board of Veterans’ Appeals); Palmore v. United States, supra (District of Columbia courts); Crowell v. Benson, 285 U. S. 22 (1932) (Deputy Commissioner of Employees’ Compensation Commission); Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856) (Treasury accounting officers). Many matters that involve the application of legal standards to facts and affect private interests are routinely decided by agency action with limited or no review by Article III courts. See, e. g., 5 U. S. C. §§ 701(a)(1), 701(a)(2); Heckler v. Chaney, 470 U. S. 821, 837-838 (1985); United States v. Erika, Inc., 456 U. S. 201, 206 (1982) (no review of Medicare reimbursements); Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 18 (1983) (administrative agencies can conclusively adjudicate claims created by the administrative state, by and against private persons); Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1983 Duke L. J. 197 (same). The Court’s most recent pronouncement on the meaning of Article III is Northern Pipeline. A divided Court was unable to agree on the precise scope and nature of Article Ill’s limitations. The Court’s holding in that case establishes only that Congress may not vest in a non-Article III court the power to adjudicate, render final judgment, and issue binding orders in a traditional contract action arising under state law, without consent of the litigants, and subject only to ordinary appellate review. 458 U. S., at 84 (plurality opinion); id., at 90-92 (opinion concurring in judgment); id., at 92 (Burger, C. J., dissenting). A Appellees contend that their claims to compensation under FIFRA are a matter of state law, and thus are encompassed by the holding of Northern Pipeline. We disagree. Any right to compensation from follow-on registrants under §3 (c)(l)(D)(ii) for EPA’s use of data results from FIFRA and does not depend on or replace a right to such compensation under state law. Cf. Northern Pipeline" }, { "docid": "23185751", "title": "", "text": "is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States.” See, also, Reetz v. Michigan, 188 U. S. 505, 507, 23 S. Ct. 390, 47 L. Ed. 563; Tracy v. Commissioner, 53 F.(2d) 575, 578 ,(C. C. A. 6). Thus we see that, in spite of its independence of other administrative departments, bureaus, or officers, and its exercise of judicial functions in the performance of the duties imposed upon it, the Board of Tax Appeals cannot be considered as other than an administrative agency, the superior of the Commissioner of Internal Revenue ■ in the-same field. The question remains whether Congress may authorize and require a review- by constitutional courts of the United States, of the administrative action of the Board, where, by virtue of the very action to be reviewed; the assessment has been nullified and no obligation to pay a tax exists. In my-opinion, this question must be answered in the negative. Where a federal administrative decision creates no pecuniary obligation Apon the part of the petitioner or appellant, or denies no clear right to a citizen and litigant, in which he is protected by the constitution or laws of the United .States, no “ease or controversy” in the constitutional sense can exist as -between such citizen and the federal government. A difference of opinion may exist between the citizen and a subordinate federal officer, and between superior and subordinate federal officers, as to the proper intent, scope, and effect of legislation, but •this' does not constitute a “case or controversy.” Under such circumstances, an appeal or right -of review may be given to legislative courts, but, in the language of the Supreme Court, constitutional courts “cannot be invested with jurisdiction of that character, whether for purposes of review or otherwise.” Federal Radio Commission v. General Electric Co., supra (page 469 of 281 U. S., 50 S. Ct. 389, 390). See, also, Keller v. Potomac Electric Power Co., 261 U. S. 428, 442-444, 43 S. Ct. 445, 67 L. Ed. 731; Muskrat v." }, { "docid": "18995512", "title": "", "text": "persons. It is clear, therefore, that this court has no authority to grant or disallow an abatement or refund of duties under the circumstances set forth in section 563 (a) and has no authority to review the decision of the Secretary of tbe Treasury, or, in cases involving less tban $25, the collector. T. D. Downing Co. v. United States, 73 Treas. Dec. 406, T. D. 49441, rehearing denied, 73 Treas. Dec. 1324, Abstract 38855; McKesson & Robbins v. United States, 13 Cust. Ct. 290, Abstract 49737. The first and second claims in the instant case are to the effect that a refund should have been authorized under the circumstances alleged and that the liquidation is illegal because the claim for a refund was disallowed. Since this court has no jurisdiction to grant or disallow a refund or to review a proper decision granting or disallowing a refund under the circumstances herein alleged, plaintiff’s first and second claims must be dismissed. The defendant’s motion to dismiss the protest is granted to that extent. The third claim, however, presents a different problem. It is alleged therein that the collector illegally exercised the function of the Secretary of the Treasury and failed to comply with certain mandatory regulations. While this court may not review issues the final determination of which has been conferred upon the Secretary of the Treasury, the validity of the action of the Secretary or other administrative official may be reviewed by the court, provided the legality of such action is properly raised by the filing of a timely protest. Waterman Steamship Corp. v. United States, 30 C. C. P. A. (Customs) 119, 125, C. A. D. 223; Hampton, Jr., & Co. v. United States, 14 Ct. Cust. Appls. 350, T. D. 42030 (affirmed in J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394; United States v. Tower & Son, 14 Ct. Cust. Appls. 421, T. D. 42058; Carl Zeiss, Inc. v. United States, 23 C. C. P. A. (Customs) 7, T. D. 47654. In Barr v. United States, 324 U. S. 83, the Supreme" }, { "docid": "22319650", "title": "", "text": "or by resort to a suit for compensatory damages at common law. In sum, § 411 confers upon the Board a new and powerful weapon against unfair and deceptive practices that injure the public. But it does not represent the only, or best, response to all challenged carrier actions that result in private wrongs. C The doctrine of primary jurisdiction “is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.” United States v. Western Pacific R. Co., 352 U. S. 59, 63 (1956). Even when common-law rights and remedies survive and the agency in question lacks the power to confer immunity from common-law liability, it may be appropriate to refer specific issues to an agency for initial determination where that procedure would secure “[ujniformity and consistency in the regulation of business entrusted to a particular agency” or where “the limited functions of review by the judiciary [would be] 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.” Far East Conference v. United States, 342 U. S., at 574-575. See also United States v. Western Pacific R. Co., supra, at 64. The doctrine has been applied, for example, when an action otherwise within the jurisdiction of the court raises a question of the validity of a rate or practice included in a tariff filed with an agency, e. g., Danna v. Air France, 463 F. 2d 407 (CA2 1972); Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U. S. 411, 417-418 (1959), particularly when the issue involves technical questions of fact uniquely within the expertise and experience of an agency — such as matters turning on an assessment of industry conditions, e. g., United States v. Western Pacific R. Co., supra, at 66-67. In this case, however, considerations of uniformity in regulation and of technical expertise do not call for prior reference ;to the Board. Petitioner seeks damages for respondent’s failure to disclose its overbooking practices." }, { "docid": "22347066", "title": "", "text": "Federal Government and an individual from whom it wishes to exact a fine. See Muniz v. Hoffman, 422 U. S. 454 (1975). These cases do not involve purely “private rights.” In cases which do involve only “private rights,” this Court has accepted factfinding by an administrative agency, without intervention by a jury, only as an adjunct to an Art. III court, analogizing the agency to a jury or a special master and permitting it in admiralty cases to perform the function of the special master. Crowell v. Benson, 285 U. S. 22, 51-65 (1932). The Court there said: “On the common law side of the federal courts, the aid of juries is not only deemed appropriate but is required by the Constitution itself.” Id., at 51. In Murray’s Lessee, the Court stated: “[T]here are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.\" 18 How., at 284. (Emphasis added.) In Oceanic, the Court stated: “In accord with this settled judicial construction the legislation of Congress from the beginning, not only as to tariff, but as to internal revenue, taxation, and other subjects, has proceeded on the conception that it was within the competency of Congress, when legislating as to matters exclusively within its control, to impose appropriate obligations and sanction their enforcement by reasonable money penalties, giving to executive officers the power to enforce such penalties without the necessity of invoking the judicial power.” 214 U. S., at 339. (Emphasis added.) The Court also rejected the Seventh Amendment claim in Jones & Laughlin on the separate ground that that Amendment is inapplicable where “recovery of money damages is an incident to [nonlegal] relief even though damages might have been recovered in an action at law,” 301 U. S., at 48-49, since in such cases courts of equity would historically have granted monetary relief. In Jones & Laughlin, the" } ]

[ { "docid": "22667065", "title": "", "text": "question is whether Medico’s interest in the nondisclosure of any rap sheet the FBI might have on him is the sort of “personal privacy” interest that Congress intended Exemption 7(C) to protect. As we have pointed out before, “[t]he cases sometimes characterized as protecting ‘privacy’ have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U. S. 589, 598-600 (1977) (footnotes omitted). Here, the former interest, “in avoiding disclosure of personal matters,” is implicated. Because events summarized in a rap sheet have been previously disclosed to the public, respondents contend that Medico’s privacy interest in avoiding disclosure of a federal compilation of these events approaches zero. We reject respondents’ cramped notion of personal privacy. To begin with, both the common law and the literal understandings of privacy encompass the individual’s control of information concerning his or her person. In an organized society, there are few facts that are not at one time or another divulged to another. Thus the extent of the protection accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly private fact and the extent to which the passage of time rendered it private. According to Webster’s initial definition, information may be classified as “private” if it is “intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public.” Recognition of this attribute of a privacy interest supports the distinction, in terms of personal privacy, between scattered disclosure of the bits of information contained in a rap sheet and revelation of the rap sheet as a whole. The very fact that federal funds have been spent to prepare, index, and maintain these criminal-history files demonstrates that the individual items of information in the summaries would not otherwise be “freely available” either to the officials who have access to the underlying files or to the general public. Indeed," } ]

[ { "docid": "568262", "title": "", "text": "plaintiff had merely been arrested, not convicted, of shoplifting, and although the charges against him were later dismissed. Addressing a procedural due process claim, the Court found that “reputation alone, apart from some more tangible interests such as employment” is not “ ‘liberty’ or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process clause.” Id. at 701, 96 S.Ct. at 1161. The Court also found that the flyer did not violate any substantive due process right, because “[plaintiff’s] claim is based, not upon any challenge to the State’s ability to restrict his freedom of action in a sphere contended to be ‘private,’ but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner.” Id. at 713, 96 S.Ct. at 1166. Under Paul, an allegation that government dissemination of information or government defamation has caused damage to reputation, even with all attendant emotional anguish and social stigma, does not in itself state a cause of action for violation of a constitutional right; infringe ment of more \"tangible interes,\" Paul, supra, 424 U.S. at 701, 96 S.Ct. at 1161, must be alleged as well. See Laureano-Agosto v. Garcia-Caraballo, 731 F.2d 101, 104 (1st Cir.1984); Limerick v. Greenwald, 666 F.2d 733, 735 (1st Cir.1981); Lyons v. Sullivan, 602 F.2d 7, 11 (1st Cir.), cert. denied, 444 U.S. 876, 100 S.Ct. 159, 62 L.Ed.2d 104 (1979). At least one court prior to June 1983 had relied on Paul in determining that the constitutional right of privacy does not encompass a general constitutional right of non-disclosure. See J.P. v. DeSanti, supra, 653 F.2d at 1088-89 (discussion of confidentiality in Whalen does not overrule Paul and create constitutional right to have all government action weighed against resulting breach of confidentiality). Additionally, in a case decided after June 1983 with facts somewhat analogous to those here, the Second Circuit relied on Paul to conclude that an allegation that a state attorney had" }, { "docid": "14692462", "title": "", "text": "“rap sheets” — files collating a person’s criminal history — maintained by the FBI, despite the fact that all of the information contained in the files was gleaned from public records scattered throughout the country. The Court’s reasoning is instructive here: In an organized society, there are few facts that are not at one time or another divulged to another. Thus the extent of the protection accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly private fact and the extent to which the passage of time rendered it private.... In addition to the common-law and dictionary understanding, the basic difference between scattered bits of criminal history and a federal compilation, federal statutory provisions, and state policies, our cases have also recognized the privacy interest inherent in the nondisclosure of certain information even where the information may have been at one time public.... 109 S.Ct. at 1476-78. It was thus incorrect for the district court to conclude categorically that the individuals identified in the transcripts lost all privacy interests in the information relating to them in the transcripts merely because some other individuals may have knowledge of the conversations. To the contrary, our discussion, supra, of these privacy interests indicates that the identified individuals still retain substantial interests in preventing the further dissemination of the information. Admittedly, without knowing in detail the particular facts of each individual’s life and relationships with employers, clients, and co-workers, it is difficult to conclude that the privacy interests of those persons mentioned only in passing are without doubt substantial, such that they may be overcome by only the greatest public interests. It must be remembered, however, that we have as of yet looked at only one side of the scale; even a small and potentially uncertain invasion of privacy engendered by the release of identifying information may nonetheless be “unwarranted” if there are no public interests supporting disclosure of the particular information. It is thus to the other side of the scale that we now turn. C. In its memorandum opinion, the district court identified the" }, { "docid": "4827374", "title": "", "text": "rap sheets based on the statutory exception for “records or information compiled for law enforcement purposes ... the production of [which] ... could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Arguing that this exception was inapplicable, the reporters reasoned that “[b]ecause events summarized in a rap sheet have been previously disclosed to the public ... [the] privacy interest in avoiding disclosure of a federal compilation of these events approaches zero.” Reporters Comm., 489 U.S. at 762-63, 109 S.Ct. 1468. The Supreme Court expressly rejected this “cramped notion of personal privacy” and expounded as follows: [T]he common law and the literal understandings of privacy encompass the individual’s control of information concerning his or her person. In an organized society, there are few facts that are not at one time or another divulged to another. Thus the extent of the protection accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly private fact and the extent to which the passage of time rendered it private. Id. at 763, 109 S.Ct. 1468. The Court then observed that “there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information.” Id. at 764, 109 S.Ct. 1468. In another case, the Court reiterated what this analysis makes clear: “An individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form.” U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 500, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994). b. The instant case also differs in another respect from Cox Broadcasting and Florida Star regarding narrow-tailoring. There, the Supreme Court held that punishing truthful publication of private information was not narrowly tailored because the government could have initially refused to disclose that information to the press. This rationale assumes that the government could have" }, { "docid": "616131", "title": "", "text": "“a right or status previously recognized by state law was distinctly altered or extinguished.” The Court concluded: Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a result of petitioners’ actions. Rather his interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law, providing a forum for vindication of those interests by means of damages actions. And any harm or injury to that interest, even where as here inflicted by an officer of the State, does not result in a deprivation of any “liberty” or “property” recognized by state or federal law, nor has it worked any change of respondent’s status as theretofore recognized under the State’s laws. For these reasons we hold that the interest in reputation asserted in this case is neither “liberty” nor “property” guaranteed against state deprivation without due process of law. Id. at 711-712, 96 S.Ct. at 1165-1166. Appellants also argue that they have alleged an invasion of their rights to “personal privacy”. A similar claim was rejected in Paul v. Davis. The Court noted that while “there is no ‘right of privacy’ found in any specific guarantee of the Constitution, the Court has recognized that ‘zones of privacy’ may be created by more specific constitu tional guarantees and thereby impose limits upon government power. See Roe v. Wade, 410 U.S. 113, 152-153, [93 S.Ct. 705, 726, 35 L.Ed.2d 147, 176-178] (1973).” Id. at 712-713, 96 S.Ct. at 1166. The Court concluded, however, that respondent’s claim was far afield from this line of decisions. He claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State’s ability to restrict his freedom of action in a sphere contended to be “private,” but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline" }, { "docid": "4827373", "title": "", "text": "resulting from disclosure would likely have already occurred. But the reasoning makes noticeably less sense where privacy hinges upon control. Whereas emotional distress resulting from disclosure occurs only once when one discovers the publicity, publicly accessible SSNs could be misused repeatedly over time until they become less easily accessed. Furthermore, because SSNs are more easily accessed online than in bound original land records, people worried about preventing identity theft (rather than embarrassment) would indeed have a considerable privacy interest against “merely giv[ing] further publicity.” Restatement (Second) of Torts § 652D cmt. b. The Supreme Court employed similar reasoning in United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). In that case, reporters filed requests under the Freedom of Information Act, 5 U.S.C. § 552, for criminal identification records, known as “rap sheets,” that the Federal Bureau of Investigation had created by collecting biographical data and criminal history found in different state and local public records. The government refused to disclose these rap sheets based on the statutory exception for “records or information compiled for law enforcement purposes ... the production of [which] ... could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Arguing that this exception was inapplicable, the reporters reasoned that “[b]ecause events summarized in a rap sheet have been previously disclosed to the public ... [the] privacy interest in avoiding disclosure of a federal compilation of these events approaches zero.” Reporters Comm., 489 U.S. at 762-63, 109 S.Ct. 1468. The Supreme Court expressly rejected this “cramped notion of personal privacy” and expounded as follows: [T]he common law and the literal understandings of privacy encompass the individual’s control of information concerning his or her person. In an organized society, there are few facts that are not at one time or another divulged to another. Thus the extent of the protection accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly private fact and the extent to which the passage of" }, { "docid": "15088574", "title": "", "text": "true, and the expectations of privacy all the more reasonable, during the pre-sentence investigation period when the youthful offender is encouraged to disclose the full nature of his personal and family history- I find defendants' reliance on Paul v. Davis, 424 U.S. 645, 96 S.Ct. 1155, 47 L.Ed.2d 366 (1976), in this regard unpersuasive. In that case, the Supreme Court held that police circulation of the fact of respondent’s arrest for shoplifting did not violate his constitutional right to privacy. The Court acknowledged that while “zones of privacy” created by more specific constitutional guarantees may impose limits upon governmental power, respondent’s claim did not implicate “fundamental” personal privacy rights or those “implicit in the concept of liberty.” Id. at 712-714, 96 S.Ct. at 1165-1167. The Court further stated: The activities detailed as being within this definition ... [are] ones very different from that for which respondent claims constitutional protection — matters relating to marriage, procreation, contra ception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the state’s power to substantively regulate conduct ... [The respondent’s] claim is based, not upon any challenge to the state’s ability to restrict his freedom of action in a sphere contended to be “private,” but instead on a claim that the state may not publicize a record of any official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner. Id. at 713, 96 S.Ct. at 1166. Were this the Supreme Court’s last statement on this issue, I might be persuaded to adopt the defendants’ position. One year later in Whalen and Nixon, however, the Court explicitly recognized that the right to privacy encompasses both an individual’s interest in avoiding disclosure of personal matters, as well as those autonomy rights discussed in Davis. See Whalen, 429 U.S. at 599-601, 97 S.Ct. at 876-877; Nixon, 433 U.S. at 457-58, 97 S.Ct. at 2797-98. The Court in Whalen, in fact, indicated that the issue presented here remained open, warning that" }, { "docid": "22667064", "title": "", "text": "Department of Housing and Urban Development maintains data on millions of home mortgages that are presumably ‘public records’ at county clerks’ offices. . . . Under the majority’s approach, in the absence of state confidentiality laws, there would appear to be a virtual per se rule requiring all such information to be released. The federal government is thereby transformed in one fell swoop into the clearinghouse for highly personal information, releasing records on any person, to any requester, for any purpose. This Congress did not intend.” Id., at 371, 831 F. 2d, at 1130 (emphasis in original). The Court of Appeals denied rehearing en banc, with four judges dissenting. App. to Pet. for Cert. 64a-66a. Because of the potential effect of the Court of Appeals’ opinion on values of personal privacy, we granted certiorari. 485 U. S. 1005 (1988). We now reverse. > Exemption 7(C) requires us to balance the privacy interest in maintaining, as the Government puts it, the “practical obscurity” of the rap sheets against the public interest in their release. The preliminary question is whether Medico’s interest in the nondisclosure of any rap sheet the FBI might have on him is the sort of “personal privacy” interest that Congress intended Exemption 7(C) to protect. As we have pointed out before, “[t]he cases sometimes characterized as protecting ‘privacy’ have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U. S. 589, 598-600 (1977) (footnotes omitted). Here, the former interest, “in avoiding disclosure of personal matters,” is implicated. Because events summarized in a rap sheet have been previously disclosed to the public, respondents contend that Medico’s privacy interest in avoiding disclosure of a federal compilation of these events approaches zero. We reject respondents’ cramped notion of personal privacy. To begin with, both the common law and the literal understandings of privacy encompass the individual’s control of information concerning his or her person. In an organized society, there are few" }, { "docid": "9517262", "title": "", "text": "can be no § 1983 claim. Generally, Fourteenth Amendment constitutional privacy is limited to information about oneself. To the extent that the right applies to information about others, it is limited to one’s decision not to share that information. To begin with, both the common law and the literal understandings of privacy encompass the individual’s control of information concerning his or her person. In an organized society, there are few facts that are not at one time or another divulged to another. Thus the extent of the protection accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly private fact and the extent to which the passage of time rendered it private. According to Webster’s initial definition, information may be classified as “private” if it is “intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public.” U.S. Dep’t of Justice v. Reporters Comm, for Freedom of Press, 489 U.S. 749, 764-65, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (footnotes omitted). Traditionally, the Fourteenth Amendment has protected two types of privacy rights. Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977); C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 178 (3d Cir.2005). First, it protects “the individual interest in avoiding disclosure of personal matters.” Hedges v. Musco, 204 F.3d 109, 121 (3d Cir.2000) (internal quotation marks and citation omitted). This category protects against disclosure of certain personal information, including: information containing specific “details of one’s personal life,” id. at 121; Scheetz v. The Morning Call, Inc., 946 F.2d 202, 208 (3d Cir.1991), information “which the individual is ordinarily entitled to retain within the private enclave where he may lead a private life,” and information containing “intimate facts of a personal nature.” United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir.1980) (internal quotation marks and citation in footnote omitted). Second, it protects “the interest in independence in making certain kinds of important decisions.” C.N., 430 F.3d at 178 (quoting Whalen, 429 U.S." }, { "docid": "14692461", "title": "", "text": "already “known to the public.” There are two flaws in the court’s reasoning. First, there is no support in the record for the proposition that APS’s knowledge is sufficient to, as it were, “fill in the blanks” in the transcripts such that it can attribute all of the references and comments in the transcripts to specific individuals. Undoubtedly, to the extent that APS employees actually participated in some of the conversations, they may have some memory of with whom they were talking and the topics discussed, although the conversations took place over five years ago. That fact, however, does not destroy any specific individual’s privacy interest in having specific comments unambiguously attributed to them by government-released records. Second, that otherwise-private information may have been at one time or in some way in the “public” domain does not mean that a person irretrievably loses his or her privacy interests in it. In Reporters Committee, a case decided after the district court rendered its decision in this case, the Court held that individuals retained privacy interests in “rap sheets” — files collating a person’s criminal history — maintained by the FBI, despite the fact that all of the information contained in the files was gleaned from public records scattered throughout the country. The Court’s reasoning is instructive here: In an organized society, there are few facts that are not at one time or another divulged to another. Thus the extent of the protection accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly private fact and the extent to which the passage of time rendered it private.... In addition to the common-law and dictionary understanding, the basic difference between scattered bits of criminal history and a federal compilation, federal statutory provisions, and state policies, our cases have also recognized the privacy interest inherent in the nondisclosure of certain information even where the information may have been at one time public.... 109 S.Ct. at 1476-78. It was thus incorrect for the district court to conclude categorically that the individuals identified in the transcripts lost all" }, { "docid": "15088575", "title": "", "text": "on the state’s power to substantively regulate conduct ... [The respondent’s] claim is based, not upon any challenge to the state’s ability to restrict his freedom of action in a sphere contended to be “private,” but instead on a claim that the state may not publicize a record of any official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner. Id. at 713, 96 S.Ct. at 1166. Were this the Supreme Court’s last statement on this issue, I might be persuaded to adopt the defendants’ position. One year later in Whalen and Nixon, however, the Court explicitly recognized that the right to privacy encompasses both an individual’s interest in avoiding disclosure of personal matters, as well as those autonomy rights discussed in Davis. See Whalen, 429 U.S. at 599-601, 97 S.Ct. at 876-877; Nixon, 433 U.S. at 457-58, 97 S.Ct. at 2797-98. The Court in Whalen, in fact, indicated that the issue presented here remained open, warning that it did not “decide any question which might be presented by the unwarranted disclosure of accumulated private data — whether intentional or unintentional.” Whalen, 429 U.S. at 605-06, 97 S.Ct. at 879. I am likewise unpersuaded by the defendant’s reliance on the Sixth Circuit’s decision in J.P. v. DeSanti, 653 F.2d 1080 (6th Cir.1981). In that case, a class of juvenile offenders sought to enjoin the juvenile court’s statutorily permitted use of their social histories for purposes of probation on the grounds that it violated their constitutional right of privacy. Although acknowledging that Whalen and Nixon “somewhat clouded” the “otherwise dispositive effect of Paul v. Davis,” id. at 1088, the Sixth Circuit nonetheless declined to construe a general constitutional right to privacy from what it perceived to be isolated statements in those cases, absent a clearer indication from the Supreme Court. Id. at 1089. The Court expressed its concern that such a “vague” and “all-encompassing” notion of individual privacy is ultimately analytically indistinguishable from the general “right to be let alone” that Justice Brandéis once" }, { "docid": "616132", "title": "", "text": "of their rights to “personal privacy”. A similar claim was rejected in Paul v. Davis. The Court noted that while “there is no ‘right of privacy’ found in any specific guarantee of the Constitution, the Court has recognized that ‘zones of privacy’ may be created by more specific constitu tional guarantees and thereby impose limits upon government power. See Roe v. Wade, 410 U.S. 113, 152-153, [93 S.Ct. 705, 726, 35 L.Ed.2d 147, 176-178] (1973).” Id. at 712-713, 96 S.Ct. at 1166. The Court concluded, however, that respondent’s claim was far afield from this line of decisions. He claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State’s ability to restrict his freedom of action in a sphere contended to be “private,” but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner. Id. at 713, 96 S.Ct. at 1166. We conclude, as did the district court, that Paul v. Davis is controlling and that plaintiffs have failed to state a claim for deprivation of a federally-protected civil right. Appellants argue further that it was error for the district court to grant a motion to dismiss under Rule 12(b)(6) without leave to amend. It is of course well established that the allegations of a complaint should be construed favorably to the pleader and the 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 which would entitle him to relief. Scheurer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). It is clear, however, that leave to further amend the complaint would have served no purpose, since the acts complained of could not constitute a claim for relief" }, { "docid": "14996191", "title": "", "text": "515-16 (8th Cir.2002) (noting that \"[n]ot every disclosure of personal information will implicate the constitutional right to privacy”); Eagle, 88 F.3d at 627 (\"We must constantly remain aware, however, that the Constitution does not provide a remedy for every wrong that occurs in society.”); McNally v. Pulitzer Pub. Co., 532 F.2d 69, 76 (1976) (\"The constitutional right of privacy is not to be equated with the common law right recognized by state tort law. Thus far only the most intimate phases of personal life have been held to be constitutionally protected.”). . See, e.g., Paul P. v. Verniero, 170 F.3d 396, 403-404 (3d Cir.1999) (\"[W]e cannot simply disregard the language of the Supreme Court rejecting any privacy interest in information, such as arrests, which is the subject of official records.”); Scheetz, 946 F.2d at 206 (noting that police reports are public documents and thus not entitled to constitutional protection); Fraternal Order of Police, 812 F.2d at 117 & n. 8 (noting that arrest records are public and thus not entitled to privacy protection); Trade Waste Mgmt. Ass’n, Inc. v. Hughey, 780 F.2d 221, 234 (3d Cir.1985) (holding that records of criminal convictions and pending criminal charges \"are by definition public” and therefore not protected). . Under N.J.S.A. 2C:52-2(a), a defendant who commits no more than two disorderly or petty offenses may also obtain expungement of his criminal record in certain Circumstances. . See Mangels, 789 F.2d at 839. In Paul v. Davis, the Supreme Court stated, He [plaintiff] claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State’s ability to restrict his freedom of action in a sphere contended to be \"private” but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner. 424 U.S. at 713, 96 S.Ct. 1155. . See Stidham v. Peace Officer Standards and Training, 265 F.3d 1144," }, { "docid": "8115314", "title": "", "text": "resolved. Paul v. Davis, 424 U.S. at 696, 96 S.Ct. at 1158. In rejecting his privacy claim, the Court noted that it “is based, not upon any challenge to the State’s ability to restrict his freedom of action in a sphere contended to be ‘private’, but instead on a claim that the State may not publicize a record of an official act such as an arrest.” Id. at 713, 96 S.Ct. at 1166. In dissent, Justice Brennan stated that he was concerned that the Court’s decision would undermine “cases holding that there are substantive limits on the power of the government to disseminate unresolved arrest records outside the law enforcement system.” Id. at 735 n. 18, 96 S.Ct. at 1177 n. 18. It is not clear to this Court that Paul signals the deathknell to challenges to the dissemination of arrest records based on the constitutional right to privacy. In Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), the Court recognized that the right to collect and use data for public purposes may be accompanied by a duty to avoid unwarranted disclosures which is based on an individual’s constitutional right to privacy. Id. at 605, 97 S.Ct. at 879. See also id. at 606, 97 S.Ct. at 879 (Brennan, J., concurring); Nixon v. Administrator of General Services, 433 U.S. 425, 426-28, 97 S.Ct. 2777, 2781-83, 53 L.Ed.2d 867 (1977). It acknowledged that “the cases sometimes characterized as protecting ‘privacy’ have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” Supra at 598-600, 97 S.Ct. at 876. Since Whalen courts have disagreed as to the circumstances under which an individual’s “interest in avoiding disclosure of personal matters” warrants constitutional protection. Compare J.P. DeSanti, 653 F.2d 1080, 1088 (6th Cir.1981) with Fadjo v. Coon, 633 F.2d 1172, 1175-76 (5th Cir.1981); United States v. Westinghouse, 638 F.2d 570, 577-80 (3d Cir.1980). Although not citing Whalen, Doe v. Webster, 606 F.2d 1226 (D.C.Cir.1979)," }, { "docid": "9517261", "title": "", "text": "then determine whether they plausibly give rise to an entitlement for relief.” Id. This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged. III. For a plaintiff to recover under § 1983, she must establish that the defendant acted under color of state law to deprive the plaintiff of a right secured by the Constitution. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Bama, 42 F.3d at 815. The right that Malleus claims is protected by the Constitution is the right to share one’s opinion about other individuals privately. For purposes of Twombly analysis, we must first establish that this is ' a right secured by the Constitution; if there is no constitutional right, it does not matter what facts have been provided as there can be no § 1983 claim. Generally, Fourteenth Amendment constitutional privacy is limited to information about oneself. To the extent that the right applies to information about others, it is limited to one’s decision not to share that information. To begin with, both the common law and the literal understandings of privacy encompass the individual’s control of information concerning his or her person. In an organized society, there are few facts that are not at one time or another divulged to another. Thus the extent of the protection accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly private fact and the extent to which the passage of time rendered it private. According to Webster’s initial definition, information may be classified as “private” if it is “intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public.” U.S. Dep’t of Justice v. Reporters Comm, for Freedom of Press, 489 U.S. 749, 764-65, 109 S.Ct. 1468," }, { "docid": "568261", "title": "", "text": "that in some circumstances that duty arguably has its roots in the Constitution, nevertheless New York’s statutory scheme ... evidence[s] a proper concern with, and protection of, the individual’s interest in privacy. We therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure of accumulated private data — whether intentional or unintentional — or by a system that did not contain comparable security provisions. We simply hold that this record does not establish an invasion of any right or liberty protected by the Fourteenth Amendment. Id. at 605-06 97 S.Ct. at 879-80 (emphasis added). Notably, this scenario, which Whalen declines to consider, is similar to that presented by the present case, in which Ryan disseminated personal information collected under a statutory proviso that it would be kept “private” except in the discretion of the court. Relevant to an analysis of Whalen is Paul v. Davis, supra, 424 U.S. 693, 96 S.Ct. 1155. In Paul, state police distributed a flyer identifying the plaintiff as an “active shoplifter,” although the plaintiff had merely been arrested, not convicted, of shoplifting, and although the charges against him were later dismissed. Addressing a procedural due process claim, the Court found that “reputation alone, apart from some more tangible interests such as employment” is not “ ‘liberty’ or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process clause.” Id. at 701, 96 S.Ct. at 1161. The Court also found that the flyer did not violate any substantive due process right, because “[plaintiff’s] claim is based, not upon any challenge to the State’s ability to restrict his freedom of action in a sphere contended to be ‘private,’ but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner.” Id. at 713, 96 S.Ct. at 1166. Under Paul, an allegation that government dissemination of information or government defamation has caused damage to reputation, even with all" }, { "docid": "14996192", "title": "", "text": "Mgmt. Ass’n, Inc. v. Hughey, 780 F.2d 221, 234 (3d Cir.1985) (holding that records of criminal convictions and pending criminal charges \"are by definition public” and therefore not protected). . Under N.J.S.A. 2C:52-2(a), a defendant who commits no more than two disorderly or petty offenses may also obtain expungement of his criminal record in certain Circumstances. . See Mangels, 789 F.2d at 839. In Paul v. Davis, the Supreme Court stated, He [plaintiff] claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State’s ability to restrict his freedom of action in a sphere contended to be \"private” but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner. 424 U.S. at 713, 96 S.Ct. 1155. . See Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1155 (10th Cir.2001); Scheetz, 946 F.2d at 206-207 (\"[T]he question of whether a federal constitutional right to privacy has been violated is a distinct question from whether a ... state common law right to privacy has been violated.... [C]ase law cited by the parties as to Pennsylvania confidentiality law cannot control the federal constitutional right.”) (internal citation omitted); Eagle, 88 F.3d at 626 (\"We observe initially that state laws, such as Arkansas’ expungement provisions, do not establish the parameters of constitutional rights, like the right to privacy, that are grounded in substantive theories of due process.”); see also Bagley v. Rogerson, 5 F.3d 325, 328-29 (8th Cir. 1993) (\"If we were to hold that the sort of state statute involved here created a liberty interest for federal constitutional purposes, we would be greatly expanding the doctrine of substantive due process. We would be holding, in effect, every state statute which imposes a mandatory duty, or creates a legal right, is constitutional in nature, and the violation of every such statute would be a violation of" }, { "docid": "12413357", "title": "", "text": "He does not seek to suppress evidence seized in the course of an unreasonable search. And our other “right of privacy” cases, while defying categorical description, deal generally with substantive aspects of the Fourteenth Amendment. In Roe the Court pointed out that the personal rights found in this guarantee of personal privacy must be limited to those which are “fundamental” or “implicit in the concept of ordered liberty”.... The activities detailed as being within this definition were ones very different from that for which respondent claims constitutional protection — matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the States’ power to substantively regulate conduct. Respondent’s claim is far afield from this line of decisions. He claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State’s ability to restrict his freedom of action in a sphere intended to be “private,” but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner. Id: at 712-13, 96 S.Ct. 1155 (citations omitted). It, should be clear from the Court’s language that the legal doctrines implicated by Paul and by the instant case are quite different. Lauro asserts, and the district court held, that the perp walk to which he was subjected constituted an unreasonable seizure, in violation of the Fourth Amendment. The plaintiff in Paul made no analogous claim. Accordingly, the Paul Court made no holding premised on the Fourth Amendment. Rather, the Court emphasized that it was concerned with limiting the potentially enormous scope of the Due Process Clause, and that no part of its holdings applied when a violation of a more particularized constitutional provision was alleged. Indeed, the Court specifically distinguished cases in which an infringement of the Fourth Amendment had been claimed. In doing so," }, { "docid": "129235", "title": "", "text": "his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State’s ability to restrict his freedom of action in a sphere contended to be ‘private,’ but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner.” Appellants do not challenge the disclosure of the cost information to the government, but rather complain of the subsequent availability of the information to the public. As in Paul v. Davis, their claim is not based upon any contention that the public disclosure of the cost information will “restrict [their] freedom of action in a sphere contended to be private.” We conclude that no cognizable constitutional right of privacy is implicated here. III. CONCLUSION We remand to the district court with leave to plaintiffs to amend the complaint on the issue of whether the disclosure of the cost information will infringe upon a constitutional property interest that the appellants may possess in the cost information. The district court’s dismissal of all the other federal claims is AFFIRMED. . Section 551(1) provides that: “For the purposes of this subchapter— (1) “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include— (A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; (D) the government of the District of Columbia; (E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them; (F) courts martial and military commissions; (G) military authority exercised in the field in time of war or in occupied territory; or (H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; chapter 2 of title 41; or sections 1622, 1844, 1891-1902, and former section 1641(b)(2), of title 50, appendix; . Section 552(e) provides that:" }, { "docid": "22652522", "title": "", "text": "in this guarantee of personal privacy must be limited to those which are “fundamental” or “implicit in the concept of ordered liberty” as described in Palko v. Connecticut, 302 U. S. 319, 325 (1937). The activities detailed as being within this definition were ones very different from that for which respondent claims constitutional protection — matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the States’ power to substantively regulate conduct. Respondent’s claim is far afield from this line of decisions. He claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State’s ability to restrict his freedom of action in a sphere contended to be “private,” but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner. None of respondent’s theories of recovery were based upon rights secured to him by the Fourteenth Amend ment. Petitioners therefore were not liable to him under § 1983. The judgment of the Court of Appeals holding otherwise is Reversed. Mr. Justice Stevens took no part in the consideration or decision of this case. The “and laws” provision of 42 U. S. C. § 1983 is not implicated in this case. It is not disputed that petitioners’ actions were a part of their official conduct and that this element of a § 1983 cause of action is satisfied here. If respondent is correct in his. contention that defamation by a state official is actionable under the Fourteenth Amendment, it would of course follow that defamation by a federal official should likewise be actionable under the cognate Due Process Clause of the Fifth Amendment. Surely the Fourteenth Amendment imposes no more stringent- requirements upon state officials than does the Fifth upon their federal counterparts. We thus consider this Court’s decisions interpreting" }, { "docid": "129234", "title": "", "text": "v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967); Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968). And our other ‘right of privacy’ cases, while defying categorical description, deal generally with substantive aspects of the Fourteenth Amendment. In Roe the Court pointed out that the personal rights found in this guarantee of personal privacy must be limited to those which are ‘fundamental’ or ‘implicit in the concept of ordered liberty’ as described in Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937). The activities detailed as being within this definition were ones very different from that for which respondent claims constitutional protection — matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the States’ power to substantively regulate conduct. “Respondent’s claim is far afield from this line of decisions. He claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State’s ability to restrict his freedom of action in a sphere contended to be ‘private,’ but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner.” Appellants do not challenge the disclosure of the cost information to the government, but rather complain of the subsequent availability of the information to the public. As in Paul v. Davis, their claim is not based upon any contention that the public disclosure of the cost information will “restrict [their] freedom of action in a sphere contended to be private.” We conclude that no cognizable constitutional right of privacy is implicated here. III. CONCLUSION We remand to the district court with leave to plaintiffs to amend the complaint on the issue of whether the disclosure of the cost information will infringe upon" } ]